4. If the competent authority of the requested Member State or of the United Kingdom, in respect of Gibraltar, if it is the requested actor, decides to have recourse to a measure other than that indicated in the request for mutual assistance as referred to in paragraphs 1 or 3, it shall first inform the competent authority of the United Kingdom, in respect of Gibraltar, if it made the request, or of the requesting Member State, which may decide to withdraw or supplement the request.
5. If the investigative measure indicated in the request does not exist under the law of the requested Member State or of the United Kingdom, in respect of Gibraltar, if it is the requested actor, or would not be available in a similar domestic case, and there is no other investigative measure which would have the same result as the investigative measure requested, the competent authority of the requested Member State or of the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall inform the competent authority of the United Kingdom, in respect of Gibraltar, if it made the request, or of the requesting Member State, that it is not possible to provide the assistance requested.
Article 157. Obligation to Inform
The competent authority of the requested Member State or of the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall inform the competent authority of the United Kingdom, in respect of Gibraltar, if it made the request, or of the requesting Member State, by any means and without undue delay if:
(a) it is impossible to execute the request for mutual assistance due to the fact that the request is incomplete or manifestly incorrect; or
(b) the competent authority of the requested Member State or of the United Kingdom, in respect of Gibraltar, if it is the requested actor in the course of the execution of the request for mutual assistance, considers without further enquiries that it may be appropriate to carry out investigative measures not initially foreseen, or which could not be specified when the request for mutual assistance was made, in order to enable the competent authority of the United Kingdom, in respect of Gibraltar, if it made the request, or of the requesting Member State, to take further action in the specific case.
Article 158. Ne Bis In Idem
Mutual assistance may be refused, in addition to the grounds for refusal provided for under the European Mutual Assistance Convention and its Protocols, on the ground that the person in respect of whom the assistance is requested and who is subject to criminal investigations, prosecutions or other proceedings, including judicial proceedings, in the requesting Member State or in the United Kingdom, in respect of Gibraltar, if it made the request, has been finally judged by an authority of the United Kingdom, of the United Kingdom, in respect of Gibraltar, or of a Member State, as the case may be, in respect of the same acts, provided that, if a penalty has been imposed, it has been enforced, is in the process of being enforced or can no longer be enforced, as the case may be, under the law of the United Kingdom, of the United Kingdom, in respect of Gibraltar, or of the Member State in which the person is being sentenced.
Article 159. Time Limits
1. The requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall decide whether to execute the request for mutual assistance as soon as possible and in any event no later than 45 days after the receipt of the request and shall inform the competent authority of the United Kingdom, in respect of Gibraltar, if it made the request, or of the requesting Member State, of its decision.
2. A request for mutual assistance shall be executed as soon as possible and, in any event, no later than 90 days after the decision referred to in paragraph 1 or after the consultation referred to in Article 155(2) has taken place.
3. If it is indicated in the request for mutual assistance that, due to procedural deadlines, the seriousness of the offence or other particularly urgent circumstances, a shorter time limit than that provided for in paragraph 1 or 2 is necessary, or if it is indicated in the request that a measure for mutual assistance is to be carried out on a specific date, the competent authority of the requested Member State or of the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall take as full account as possible of that requirement.
4. Where applicable, if a request for mutual assistance is made to take provisional measures pursuant to Article 24 of the Second Additional Protocol to the European Mutual Assistance Convention, the competent authority of the requested Member State or of the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall decide on the provisional measure, and shall communicate that decision to the competent authority of the United Kingdom, in respect of Gibraltar, if it made the request, or of the requesting Member State as soon as possible after the receipt of the request. Before lifting any provisional measure taken pursuant to this Article, the competent authority of the requested Member State or of the United Kingdom, in respect of Gibraltar, if it is the requested actor, wherever possible, shall give the competent authority of the requesting the United Kingdom, in respect of Gibraltar, if it made the request, or of the requesting Member State, an opportunity to present its reasons in favour of continuing the measure.
5. If in a specific case, the time limit provided for in paragraph 1 or 2, or the time limit or specific date referred to in paragraph 3 cannot be met, or the decision on taking provisional measures in accordance with paragraph 4 is delayed, the competent authority of the requested Member State or of the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall, without delay, inform the competent authority of the United Kingdom, in respect of Gibraltar, if it made the request, or of the requesting Member State, by any means, giving the reasons for the delay, and shall consult with the competent authority of the United Kingdom, in respect of Gibraltar, if it made the request, or of the requesting Member State, on the appropriate timing to execute the request for mutual assistance.
6. For greater certainty, the provisions of this Article take precedence over Article 6 of the Third Additional Protocol to the European Mutual Assistance Convention.
Article 160. Transmission of Requests for Mutual Assistance
1. Article 6(1) shall apply only in relation to the initial transmission of requests for mutual assistance and to the initial transmission of communications relating to spontaneous information and notifications referred to in Articles 3 and 4 of the Third Additional Protocol to the European Mutual Assistance Convention, which shall be transmitted in accordance with that Article and the respective provisions of the European Mutual Assistance Convention and its Protocols.
2. In addition to the channels of communication provided for under the European Mutual Assistance Convention and its Protocols, if direct transmission is provided, under their respective provisions, for requests for mutual assistance, and communications relating to spontaneous information and notifications referred to Articles 3 and 4 of the Third Additional Protocol to the European Mutual Assistance Convention, these may also be transmitted directly by public prosecutors of the United Kingdom, in respect of Gibraltar, to competent authorities of the Member States. Article 6(1) shall apply to the initial transmission of such requests for mutual assistance, and to the initial transmission of such communications relating to spontaneous information and notifications referred to Articles 3 and 4 of the Third Additional Protocol to the European Mutual Assistance Convention by public prosecutors of the United Kingdom, in respect of Gibraltar.
3. In addition to the channels of communication provided for under the European Mutual Assistance Convention and its Protocols, in urgent cases or where competent authorities of two or more Member States and the United Kingdom, in respect of Gibraltar, need to coordinate judicial cooperation procedures, any request for mutual assistance, as well as spontaneous information, or notification referred to Articles 3 and 4 of the Third Additional Protocol to the European Mutual Assistance Convention, and by way of derogation from paragraph 1, may be transmitted via Europol or Eurojust in line with the provisions in the respective Chapters of this Agreement.
Article 161. Joint Investigation Teams
If the competent authorities of Member States and of the United Kingdom, in respect of Gibraltar, set up a Joint Investigation Team, the relationship between Member States within the Joint Investigation Team shall be governed by Union law, notwithstanding the legal basis referred to in the Agreement on the setting up of the Joint Investigation Team.
Chapter 6. FREEZING AND CONFISCATION
Article 162. Objective and Principles of Cooperation
1. The objective of this Chapter is to provide for cooperation between the United Kingdom, in respect of Gibraltar, on the one side, and the Member States, on the other side, to the widest extent possible for the purposes of investigations and proceedings aimed at the freezing of property with a view to subsequent confiscation thereof and investigations and proceedings aimed at the confiscation of property within the framework of proceedings in criminal matters. This does not preclude other cooperation pursuant to Article 171(5) and (6). This Chapter also provides for cooperation with Union bodies designated by the Union for the purposes of this Chapter.
2. The United Kingdom, in respect of Gibraltar, and the Member States shall comply, under the conditions provided for in this Chapter, with requests from a Member State or the United Kingdom, in respect of Gibraltar:
(a) for the confiscation of specific items of property, as well as for the confiscation of proceeds consisting of a requirement to pay a sum of money corresponding to the value of proceeds;
(b) for investigative assistance and provisional measures with a view to either form of confiscation referred to in point (a).
3. Investigative assistance and provisional measures sought under point (b) of paragraph 2 shall be carried out as permitted by and in accordance with the domestic law of the requested Member State or of the United Kingdom, in respect of Gibraltar, if it is the requested actor. Where the request concerning one of these measures specifies formalities or procedures which are necessary under the domestic law of the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, even if unfamiliar to the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, the latter shall comply with such requests to the extent that the action sought is not contrary to the fundamental principles of its domestic law.
4. The requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall ensure that the requests coming from another Member State or the United Kingdom, in respect of Gibraltar, to identify, trace, freeze or seize the proceeds and instrumentalities, receive the same priority as those made in the framework of domestic procedures.
5. When requesting confiscation, investigative assistance and provisional measures for the purposes of confiscation, the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, shall ensure that the principles of necessity and proportionality are respected.
6. The provisions of this Chapter shall apply in place of the "international cooperation" Chapters of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, done at Warsaw on 16 May 2005 ("the 2005 Convention") and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, done at Strasbourg on 8 November 1990 ("the 1990 Convention"). Article 163 of this Agreement shall replace the corresponding definitions in Article 1 of the 2005 Convention and Article 1 of the 1990 Convention. The provisions of this Chapter shall not affect the obligations of the United Kingdom, in respect of Gibraltar, or Member States under the other provisions of the 2005 Convention and the 1990 Convention.
Article 163. Definitions
For the purposes of this Chapter, the following definitions apply:
(a) "confiscation" means a penalty or a measure ordered by a court following proceedings in relation to a criminal offence or criminal offences, resulting in the final deprivation of property;
(b) "freezing" or "seizure" means temporarily prohibiting the transfer, destruction, conversion, disposition or movement of property or temporarily assuming custody or control of property on the basis of an order issued by a court or other competent authority;
(c) "instrumentalities" means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal offences;
(d) "judicial authority" means an authority that is, under domestic law, a judge, a court or a public prosecutor; a public prosecutor is considered a judicial authority only to the extent that domestic law so provides;
(e) "proceeds" means any economic benefit, derived from or obtained, directly or indirectly, from criminal offences, or an amount of money equivalent to that economic benefit; it may consist of any property as defined in this Article;
(f) "property" includes property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title or interest in such property, which the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, considers to be:
(i) the proceeds of a criminal offence, or its equivalent, whether the full amount of the value of such proceeds or only part of the value of such proceeds;
(ii) the instrumentalities of a criminal offence, or the value of such instrumentalities;
(iii) subject to confiscation under any other provisions relating to powers of confiscation under the law of the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, following proceedings in relation to a criminal offence, including third party confiscation, extended confiscation and confiscation without final conviction.
Article 164. Obligation to Assist
The United Kingdom, in respect of Gibraltar, and the Member States shall afford each other, upon request, the widest possible measure of assistance in the identification and tracing of instrumentalities, proceeds and other property liable to confiscation. Such assistance shall include any measure providing and securing evidence as to the existence, location or movement, nature, legal status or value of those instrumentalities, proceeds or other property.
Article 165. Requests for Information on Bank Accounts and Safe Deposit Boxes
1. The requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall, under the conditions set out in this Article, take the measures necessary to determine, in answer to a request sent by the United Kingdom, in respect of Gibraltar, or a Member State, whether a natural or legal person that is the subject of a criminal investigation holds or controls one or more accounts, of whatever nature, in any bank located in the respective Member State's territory or in Gibraltar, and, if so, provide the details of the identified accounts. These details shall in particular include the name of the customer account holder and the IBAN number, and, in the case of safe deposit boxes, the name of the lessee or a unique identification number.
2. The obligation set out in paragraph 1 applies only to the extent that the information is in the possession of the bank keeping the account.
3. In addition to the requirements of Article 186, the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, shall, in the request:
(a) indicate why it considers that the requested information is likely to be of substantial value for the purposes of the criminal investigation into the offence;
(b) state on what grounds it presumes that banks in the requested Member State or in Gibraltar, if the United Kingdom, in respect of Gibraltar, is the requested actor, hold the account and specify, to the widest extent possible, which banks and accounts may be involved; and
(c) include any additional information available which may facilitate the execution of the request.
4. The United Kingdom, in respect of Gibraltar, and the Union, acting on behalf of any of its Member States, may each notify the Specialised Committee on the Circulation of Persons that this Article will be extended to accounts held in non-bank financial institutions. Such notifications may be made subject to the principle of reciprocity.
Article 166. Requests for Information on Banking Transactions
1. On request by another Member State or the United Kingdom, in respect of Gibraltar, the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall provide the particulars of specified bank accounts and of banking operations which have been carried out during a specified period through one or more accounts specified in the request, including the particulars of any sending or recipient account.
2. The obligation set out in paragraph 1 applies only to the extent that the information is in the possession of the bank keeping the account.
3. In addition to the requirements of Article 186, the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, shall indicate in its request why it considers the requested information relevant for the purposes of the criminal investigation into the offence.
4. The requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, may make the execution of such a request dependent on the same conditions as it applies in respect of requests for search and seizure.
5. The United Kingdom, in respect of Gibraltar, and the Union, acting on behalf of any of its Member States, may each notify the Specialised Committee on the Circulation of Persons that this Article will be extended to accounts held in non-bank financial institutions. Such notifications may be made subject to the principle of reciprocity.
Article 167. Requests for the Monitoring of Banking Transactions
1. The requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall ensure that, at the request of the United Kingdom, in respect of Gibraltar, or of a Member State, it is able to monitor, during a specified period, the banking operations that are being carried out through one or more accounts specified in the request and to communicate the results of the monitoring to the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor.
2. In addition to the requirements of Article 186, the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, shall indicate in its request why it considers the requested information relevant for the purposes of the criminal investigation into the offence.
3. The decision to monitor shall be taken in each individual case by the competent authorities of the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, in accordance with its domestic law.
4. The practical details regarding the monitoring shall be jointly decided by the requesting and requested Member State or the United Kingdom, in respect of Gibraltar, as the requesting or requested actor, as the case may be.
5. The United Kingdom, in respect of Gibraltar, and the Union, acting on behalf of any of its Member States, may each notify the Specialised Committee on the Circulation of Persons that this Article will be extended to accounts held in non-bank financial institutions. Such notifications may be made subject to the principle of reciprocity.
Article 168. Spontaneous Information
Without prejudice to its own investigations or proceedings, a Member State or the United Kingdom, in respect of Gibraltar, may without prior request forward to the United Kingdom, in respect of Gibraltar, or to a Member State information on instrumentalities, proceeds and other property liable to confiscation, where it considers that the disclosure of such information might assist the receiving Member State or the United Kingdom, in respect of Gibraltar, if it is the receiving actor, in initiating or carrying out investigations or proceedings or might lead to a request by that Member State or the United Kingdom, in respect of Gibraltar, under this Chapter.
Article 169. Obligation to Take Provisional Measures
1. At the request of the United Kingdom, in respect of Gibraltar, or of a Member State which has instituted a criminal investigation or proceedings, or an investigation or proceedings for the purposes of confiscation, the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall take the necessary provisional measures, such as freezing or seizing, to prevent any dealing in, transfer or disposal of property which, at a later stage, may be the subject of a request for confiscation or which might satisfy the request.
2. A Member State or the United Kingdom, in respect of Gibraltar, which has received a request for confiscation pursuant to Article 171 shall, if so requested, take the measures referred to in paragraph 1 in respect of any property which is the subject of the request or which might satisfy the request.
3. Where a request is received under this Article, the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall take all necessary measures to comply with the request without delay and with the same speed and priority as for a similar domestic case and send confirmation without delay and by any means of producing a written record to the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State.
4. Where the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, states that immediate freezing is necessary since there are legitimate grounds to believe that the property in question will immediately be removed or destroyed, the United Kingdom, in respect of Gibraltar, if it is the requested actor, or the requested Member State shall take all necessary measures to comply with the request within 96 hours of receiving the request and send confirmation to the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, by any means of producing a written record and without delay.
5. Where the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, is unable to comply with the time limits under paragraph 4, the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall immediately inform the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State and consult with the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State on the appropriate next steps.
6. Any expiration of the time limits under paragraph 4 does not extinguish the requirements placed on the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, by this Article.
Article 170. Execution of Provisional Measures
1. After the execution of the provisional measures requested in conformity with Article 169(1), the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, shall provide spontaneously and as soon as possible to the United Kingdom, in respect of Gibraltar, if it is the requested actor, or the requested Member State all information which may question or modify the extent of those measures. The requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, shall also provide without delay all complementary information required by the United Kingdom, in respect of Gibraltar, if it is the requested actor, or the requested Member State and which is necessary for the implementation of and the follow-up to the provisional measures.
2. Before lifting any provisional measure taken pursuant to Article, the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall, wherever possible, give the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State an opportunity to present its reasons in favour of continuing the measure.
Article 171. Obligation to Confiscate
1. If a Member State or the United Kingdom, in respect of Gibraltar, has received a request for confiscation of property situated in the respective Member State's territory or in Gibraltar, if the United Kingdom, in respect of Gibraltar, is the requested actor, it shall:
(a) enforce a confiscation order made by a court in the requesting Member State or in Gibraltar, if the United Kingdom, in respect of Gibraltar is the requesting actor, in relation to such property; or
(b) submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such an order is granted, enforce it.
3. For the purposes of point (b) of paragraph 1, the Member States or the United Kingdom, in respect of Gibraltar, shall, whenever necessary, have competence to institute confiscation proceedings under their own domestic law.
4. Paragraph 1 also applies to confiscation consisting of a requirement to pay a sum of money corresponding to the value of proceeds, if property against which the confiscation can be enforced is located in the requested Member State's territory or in Gibraltar, if the United Kingdom, in respect of Gibraltar, is the requested actor. In such cases, when enforcing confiscation pursuant to paragraph 1, the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall, if payment is not obtained, realise the claim on any property available for that purpose.
5. If a request for confiscation concerns a specific item of property, the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, and the United Kingdom, in respect of Gibraltar, if it is the requested actor, or the requested Member State, may decide that the United Kingdom, in respect of Gibraltar, if it is the requested actor, or the requested Member State may enforce the confiscation in the form of a requirement to pay a sum of money corresponding to the value of the property.
6. The United Kingdom, in respect of Gibraltar, and the Member States shall cooperate to the widest extent possible under their domestic law with a Member State or the United Kingdom, in respect of Gibraltar, requesting the execution of measures equivalent to confiscation of property, where the request has not been issued in the framework of proceedings in criminal matters, in so far as such measures are ordered by a judicial authority of the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, in relation to a criminal offence, provided that it has been established that the property constitutes proceeds or:
(a) other property into which the proceeds have been transformed or converted;
(b) property acquired from legitimate sources, if proceeds have been intermingled, in whole or in part, with such property, up to the assessed value of the intermingled proceeds; or
(c) income or other benefit derived from the proceeds, from property into which proceeds of crime have been transformed or converted or from property with which the proceeds of crime have been intermingled, up to the assessed value of the intermingled proceeds, in the same manner and to the same extent as proceeds.
7. The measures referred to in paragraph 5 include measures which allow the seizure, detention and forfeiture of property and assets by means of applications to civil courts.
8. The requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall take the decision on the execution of the confiscation order without delay, and, without prejudice to paragraph 8 of this Article, no later than 45 days after receiving the request. The requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall send confirmation to the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State by any means of producing a written record and without delay. Unless grounds for postponement under Article 178 exist, the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor shall take the concrete measures necessary to execute the confiscation order without delay and, at least, with the same speed and priority as for a similar domestic case.
9. Where the requested Member State or the United Kingdom in respect of Gibraltar if it is the requested actor, is unable to comply with the time limit under paragraph 7, it shall immediately inform the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State and consult with the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State on the appropriate next steps.
10. Any expiration of the time limit under paragraph 7 does not extinguish the requirements placed on the requested Member State or the United Kingdom in respect of Gibraltar if it is the requested actor, by this Article.
Article 172. Execution of Confiscation
1. The procedures for obtaining and enforcing the confiscation under Article 171 shall be governed by the domestic law of the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor.
2. The requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall be bound by the findings as to the facts in so far as they are stated in a conviction or judicial decision issued by a court in the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State or in so far as such conviction or judicial decision is implicitly based on them.
3. If the confiscation consists of the requirement to pay a sum of money, the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall convert the amount thereof into their respective currency at the rate of exchange applicable at the time when the decision to enforce the confiscation is taken.
Article 173. Confiscated Property
1. Subject to paragraphs 2 and 3 of this Article, property confiscated pursuant to Articles 171 and 172 shall be disposed of by the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, in accordance with its domestic law and administrative procedures.
2. When acting on the request made by the United Kingdom, in respect of Gibraltar, or a Member State pursuant to Article 171, the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall, to the extent permitted by its domestic law and if so requested, give priority consideration to returning the confiscated property to the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State so that it can give compensation to the victims of the crime or return such property to their legitimate owners.
3. Where acting on the request made by the United Kingdom, in respect of Gibraltar, or a Member State in accordance with Article 171, and after having taken into account the right of a victim to restitution or compensation of property pursuant to paragraph 2 of this Article, the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall dispose of the money obtained as a result of the execution of a confiscation order as follows:
(a) if the amount is equal to or less than EUR 10 000, the amount shall accrue to the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor; or
(b) if the amount is greater than EUR 10 000, the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall transfer 50 % of the amount recovered to the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State.
4. Notwithstanding paragraph 3, the United Kingdom, in respect of Gibraltar, and Member States may, on a case-by-case basis, give special consideration to concluding other such agreements or arrangements on disposal of property as they deem appropriate.
Article 174. Right of Enforcement and Maximum Amount of Confiscation
1. A request for confiscation made under Article 171 does not affect the right of the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, to enforce the confiscation order itself.
2. Nothing in this Chapter shall be interpreted as permitting the total value of the confiscation to exceed the amount of the sum of money specified in the confiscation order. If a Member State or the United Kingdom, in respect of Gibraltar, finds that this might occur, the United Kingdom, in respect of Gibraltar, and the Member States concerned, shall enter into consultations to avoid such an effect.
Article 175. Imprisonment In Default
The requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall not impose imprisonment in default or any other measure restricting the liberty of a person as a result of a request under Article 171 without the consent of the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State.
Article 176. Grounds for Refusal
1. Cooperation under this Chapter may be refused if:
(a) the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, considers that executing the request would be contrary to the principle of ne bis in idem; or
(b) the offence to which the request relates does not constitute an offence under the domestic law of the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, if committed within its jurisdiction; however, this ground for refusal applies to cooperation under Articles CONFISC.3 (Obligation to assist) to CONFISC.7 (Spontaneous information) only in so far as the assistance sought involves action which is coercive.
2. The United Kingdom, in respect of Gibraltar, and the Union, acting on behalf of any of its Member States, may each notify the Specialised Committee on the Circulation of Persons that, on the basis of reciprocity, the condition of double criminality referred to in point (e) of paragraph 1 of this Article will not be applied provided that the offence giving rise to the request is:
(a) one of the offences listed in Article 118(5), as defined by the law of the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor; and
(b) punishable by the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, by a custodial sentence or a detention order for a maximum period of at least three years.
3. Cooperation under Articles 164 to 168, in so far as the assistance sought involves action which is coercive, and under 169 and 170 may also be refused if the measures sought could not be taken under the domestic law of the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, for the purposes of investigations or proceedings in a similar domestic case.
4. Where the domestic law of the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, so requires, cooperation under Articles 164 to 168, in so far as the assistance sought involves action which is coercive, and under Articles 169 and 170 may also be refused if the measures sought or any other measures having similar effects would not be permitted under the domestic law of the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, or, if the request is not authorised by a judicial authority acting in relation to criminal offences.
5. Cooperation under Articles 171 to 175 may also be refused if:
(a) under the domestic law of the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, confiscation is not provided for in respect of the type of offence to which the request relates;
(b) without prejudice to the obligation pursuant to Article 171(3), it would be contrary to the principles of the domestic law of the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, concerning the limits of confiscation in respect of the relationship between an offence and:
(i) an economic advantage that might be qualified as its proceeds; or
(ii) property that might be qualified as its instrumentalities;
(c) under the domestic law of the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, confiscation may no longer be imposed or enforced because of the lapse of time;
(d) without prejudice to Article 171(5) and (6), the request does not relate to a previous conviction, or a decision of a judicial nature or a statement in such a decision that an offence or several offences have been committed, on the basis of which the confiscation has been ordered or is sought;
(e) confiscation is either not enforceable in the requesting Member State or in Gibraltar, if the United Kingdom, in respect of Gibraltar, is the requesting actor, or it is still subject to ordinary means of appeal; or
(f) the request relates to a confiscation order resulting from a decision rendered in absentia of the person against whom the order was issued and, in the opinion of the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, the proceedings conducted by the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State leading to such decision did not satisfy the minimum rights of defence recognised as due to everyone against whom a criminal charge is made.
6. For the purposes of point (f) of paragraph 5 a decision is not considered to have been rendered in absentia if:
(a) it has been confirmed or pronounced after opposition by the person concerned; or
(b) it has been rendered on appeal, provided that the appeal was lodged by the person concerned.
7. When considering, for the purposes of point (f) of paragraph 5, whether the minimum rights of defence have been satisfied, the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall take into account the fact that the person concerned has deliberately sought to evade justice or the fact that that person, having had the possibility of lodging a legal remedy against the decision made in absentia, elected not to do so. The same applies where the person concerned, having been duly served with the summons to appear, elected not to do so nor to ask for adjournment.
8. The Member States or the United Kingdom, in respect of Gibraltar, shall not invoke bank secrecy as a ground to refuse any cooperation under this Chapter. Where its domestic law so requires, a requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, may require that a request for cooperation which would involve the lifting of bank secrecy be authorised by a judicial authority acting in relation to criminal offences.
9. The requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall not invoke the fact that:
(a) the person under investigation by, or subject to a confiscation order of, the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requesting actor, is a legal person as an obstacle to affording any cooperation under this Chapter;
(b) the natural person against whom an order of confiscation of proceeds has been issued has died or a legal person against whom an order of confiscation of proceeds has been issued has subsequently been dissolved as an obstacle to affording assistance in accordance with point (a) of Article 171(1); or
(c) the person under investigation by, or subject to a confiscation order of, the requesting Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, is mentioned in the request both as the author of the underlying criminal offence and of the offence of money laundering as an obstacle to affording any cooperation under this Chapter.
Article 177. Consultation and Information
Where there are substantial grounds for believing that the execution of a freezing or confiscation order would entail a real risk for the protection of fundamental rights, the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall, before it decides on the execution of the freezing or confiscation order, consult the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State and may require any necessary information to be provided.
Article 178. Postponement
The requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, may postpone action on a request if such action would prejudice the investigations or proceedings of that Member State or the United Kingdom, in respect of Gibraltar.
Article 179. Partial or Conditional Granting of a Request
Before refusing or postponing cooperation under this Chapter, the requested Member State or the United Kingdom, in respect of Gibraltar, if it is requested actor, where appropriate after having consulted the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State, shall consider whether the request may be granted partially or subject to such conditions as it deems necessary.
Article 180. Notification of Documents
1. The United Kingdom, in respect of Gibraltar, and the Member States shall afford each other the widest measure of mutual assistance in the serving of judicial documents to persons affected by provisional measures and confiscation.
2. Nothing in this Article is intended to interfere with:
(a) the possibility of sending judicial documents, by postal channels, directly to persons abroad; and
(b) the possibility for judicial officers, officials or other competent authorities of the Member State of origin, or the United Kingdom, in respect of Gibraltar, where it is the sending actor, to effect service of judicial documents directly through the consular authorities of that Member State or the United Kingdom, as the case may be, or through the judicial authorities, including judicial officers and officials, or other competent authorities, of the Member State of destination, or the United Kingdom, in respect of Gibraltar, if it is the receiving actor.
3. When serving judicial documents to persons abroad affected by provisional measures or confiscation orders issued in the sending Member State or in the United Kingdom, in respect of Gibraltar, if they were sent by it, that Member State or the United Kingdom, in respect of Gibraltar, shall indicate what legal remedies are available under its domestic law to such persons. The central authority of the United Kingdom, in respect of Gibraltar, if the person to whom the judicial documents are sent resides in Gibraltar, or in the Member State in which the person to whom the judicial documents are sent resides, as the case may be, shall receive a copy of these judicial documents in parallel.
Article 181. Recognition of Foreign Decisions
1. When dealing with a request for cooperation under Articles 169 to 175 the requested Member State or the United Kingdom, in respect of Gibraltar, if it is the requested actor, shall recognise any decision issued by a judicial authority taken in the United Kingdom, in respect of Gibraltar, if it is the requesting actor, or the requesting Member State regarding rights claimed by third parties.
2. Recognition may be refused if:
(a) third parties did not have adequate opportunity to assert their rights;