Notice of freezing and confiscation orders in accordance with the Regulation (UE) 2018/1805

Part 1. Registry requirements

1. What is the procedure to lodge or present these judicial orders in the Land Register? Particularly electronic.

On the one hand, based on art. 2a Penalty Regulation regarding the Territorial Integrity of Ukraine (in Dutch: Sanctieregeling territoriale integriteit Oekraïne 2014) , being a Ministerial Regulation and art 1aa Penalty Regulation Belarus 2006 (in Dutch: Sanctieregeling Belarus 2006) , the registrar has competence to notify (Registrar’s declaration) in case of freezing of an immovable, based on Regulation (EG) nr. 765/2006 and/or (EU) nr. 269/2014. The registrar personally scrutinizes al new additions to the annexes belonging to the regulations. In case any (legal) person or entity is added to one of the annexes, the registrar actively checks whether this (legal) person or entity is registered ad an rights holder with regard to any immovable.

On the other hand, the registrar may receive information from the Chambers of Commerce, the inspector and the tax authority (in accordance with art. 1aa section 2 and 3 of the Penalty Regulation Belarus 2006 and art 2a section 2 and 3 of the Penalty Regulation regarding the Territorial Integrity of Ukraine and the competent Minister of (these) independent administrative body to issue information or intelligence to governmental institutions or charged with supervision of compliance of these sanctions (a broader general legal basis, art 1ab Penalty Regulation Belarus 2006 and art 2b Penalty Regulation regarding the Territorial Integrity of Ukraine (in Dutch: Sanctieregeling territoriale integriteit Oekraïne 2014).
Up until now the shared information is provided by ‘hand delivery’ and by e-mail.

2. Possibility of registering these orders in the event that who appears as the owner of a property according to the land registry («A») is a different person from the defendant (or person «B») who is issued a freezing or confiscation order against

• Should the judgment be registered even if the owner according to the land register is “A” and the judicial measure is concerning to “B”?

Only in the case the Registrar can conclude and verify (from the available information) that there is controlling interest (predominant control) or connection (solidarity) between the persons A and B, the registrar is authorized to notify (Registrars’ declaration in both the cadastral registration and the public register).

It should be noted that Regulation (EU) nr. 269/2014 impose requirements to the definition of controlling interest (predominant control). If controlling interest (predominant control) B to A is in place , the registrar will notify (Registrar’s declaration) with regard to the given property of A.

• Otherwise, should the land register refuse the registration or apply for any type of clarification?

Yes. The registrar will ask for additional information in the case the abovementioned would not suffice (verification of the abovementioned would not be possible).

• There is no procedure where A would be urged, called or heard prior to the notification in the public register and cadastral registration by the registrar. Such a procedure could or would imply the risk of alienating the given property prior to the notification. This would be highly undesirable.

It might possible that a judgment exists, containing the determination of a relationship between A and B on the basis of which action is needed. But such is not necessary. There is a reporting obligation for B to report that he has a controlling interest (predominant control) in A. In the case B does so, there is no further investigation needed.

3. Type and duration of the registration of these orders

We only have to deal with freezing orders. They lead to a notice for an indefinite period of time.

Part 2. Registry effects

1. Effects of the freezing order once registered

• The freezing order involves a warning to third parties
• Prohibition of disposal: the owner is not allowed to sell, mortgage or carry out any other act of disposal on the property. The order blocks any possible registration. The registrar will refuse any deed containing a transfer or any other legal transaction conducted by or on behalf of the owner.

2. Effects of the confiscation order once registered

Not applicable

3. What is the registry proceeding and moment in which the opening procedures of freezing or confiscation are applied for registration?

Article 5.5.15 of the Wetboek van Strafvordering (Law on Criminal Procedures) states as follows: “1. A freezing order issued by an issuing authority of a Member State of the European Union bound by Regulation 2018/1805 shall be recognized by the public prosecutor and executed in accordance with that Regulation. 2. The freezing order shall be enforced by seizure of objects, with application mutatis mutandis of the third section of Title IV of the First Book, unless otherwise provided in this Title.”

This means that: The Public prosecutor is the first one to handle the case. He recognizes the freezing order and sends it to a bailiff to enforce a seizure of the object. The bailiff will send a seizure to the Land Register electronically. The Land registrar will do a formal check of the document on the registration requirements, registers the document in the Land Register and applies the seizure in the object-based land registration.

There are also cases that the registrar has its own competence -ex officio- to act immediately when there is European Regulation that contains the freezing of the real estate of a (legal) person. It’s also possible that European or national authorities hand over information to the registrar which proves that the person that is named in the freezing order has full control of another (legal) person. And that the real estate of the other (legal) person should therefore be freezed as well.

The registrar will in both cases place an object-attention in the object based Land registration to warn third parties that the object is freezed based on European Regulation. In Dutch: “Aantekening als bedoeld in artikel 2a Sanctieregeling territoriale integriteit Oekraïne 2014 en/of artikel 1aa Sanctieregeling Belarus 2006: op dit registergoed zijn mogelijk de Verordeningen (EG) 765/2006, (EU) 269/2014, (EU) 2022/330 en (EU) 2022/398 van toepassing.”

Furthermore, the registrar draws up an internal declaration with the justification of the object-attention. This information is stored and regarded as confidential information.

4. What are the executing authorities of these orders in this national system and what is the role of the land registers?

See answer question 1. There is a specific Public Prosecutor assigned to handle the cases (the Public Prosecutor of the North of the Netherlands). This is stated in article 4 of the Wet wederzijdse erkenning en tenuitvoerlegging geldelijke sancties en beslissingen tot confiscatie (Law on mutual recognition and enforcement of financial sanctions and confiscation orders). The bailiff is the competent authority to enforce a seizure and send it to the Land Register. The land registrar will do a formal check on the registration requirements, registers the document in the Land Register and applies it to the object- bases land registration.

There is also a regulation (Sanctieregeling) in which several executing authorities are mentioned if there is a freezing order by law or European Regulation (that can be enforced immediately ex officio) . The land registrar is one of the competent authorities that are mentioned in this regulation. Others are the Chamber of Commerce, the national Tax Authority, several Ministries, Authority on Financial Markets, Authority Consumer and Market and the National Dutch Bank.

Part 3. National land registry experience

Up till now there is not a significant use of judicial freezing orders.