Declaring to the Asset Management Office any monies, debts or virtual assets seized as part of criminal proceedings in Luxembourg or abroad
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The Asset Management Office (Bureau de Gestion des Avoirs – BGA) manages, in addition to other assets, any sums of money – be it in cash or in credit balances in an account –, debts or virtual assets seized as part of criminal proceedings in Luxembourg or abroad.
The BGA will:
- hold the monies in the Consignment Office (Caisse de consignation);
- hold the virtual assets in a wallet opened with the Consignment Office; and
- collect the debts as a substitute for the State in enforcing the rights of the creditor.
For monies and virtual assets seized after 1 October 2022, the public prosecutor or the examining magistrate will order them to be transferred to the Consignment Office.
For monies, debts and virtual assets seized prior to 1 October 2022, garnishees have 6 months from 1 October 2022 to respond to the BGA and immediately transfer the assets after having been instructed to do so by the BGA.
In the latter case, garnishees must respond to the BGA by way of a declaration of seized assets submitted through MyGuichet.lu.
Who is concerned?
Garnishees concerned
The MyGuichet.lu procedure is aimed at credit institutions and virtual asset service providers.
Assets in question
The procedure applies to monies, debts or virtual assets seized prior to 1 October 2022.
The monies in question include:
- cash: in particular, liquid assets deposited in kind into a safe, before being credited to an account, or held in a safe deposit box; and
- credit balances in an account:
- credit balances in a demand deposit account or savings account;
- the balance in a securities account must also be declared, though it is optional to have the BGA handle securities.
Prerequisites
Preliminary steps
Setting up a business eSpace on MyGuichet.lu
Before commencing the 'declaration of seized assets' procedure, the declarant must have a business eSpace on MyGuichet.lu.
How to set up a business eSpace on MyGuichet.lu
Two scenarios are possible:
- The person submitting the application is a new user on MyGuichet.lu and does not yet have an eSpace:
Creating the eSpace involves 2 steps:- registering the user;
- creating the business eSpace.
A tutorial in the form of a video (mp4, 9.03 Mb) or a PDF document (Pdf, 1.31 Mb) is available to guide you.
- The person filing the application is a MyGuichet.lu user and already has a private eSpace: they will need to set up a new business eSpace.
A tutorial in the form of a video (mp4, 4.46 Mb) or a PDF document (Pdf, 1.05 Mb) is available to guide you.
You can also refer to the help section on MyGuichet.lu.
Certification of a business eSpace
Seized assets must be declared through a BGA-certified business eSpace on MyGuichet.lu.
The certification procedure requires authentication on MyGuichet.lu (see under 'Forms / Online services' below).
For authentication purposes, the user must have:
- a LuxTrust product (e.g. Token, Smartcard or Signing stick); or
- an electronic identity card (eID).
Deadlines
The deadline to declare assets seized prior to 1 October 2022, is 31 March 2023.
However, the procedure will still be accessible after that date.
Costs
The 'declaration of seized assets' procedure is free.
How to proceed
Filing the declaration of seized assets
The garnishee must file the declaration of seized assets with the BGA electronically, using an authenticated procedure on MyGuichet.lu (see 'Forms / Online services' below).
To do so, they will need:
- a LuxTrust product (e.g. Token, Smartcard or Signing stick); or
- an electronic identity card (eID).
The declaration must be filed through MyGuichet.lu (business eSpace):
- either by uploading a structured file in XML format – maximum file size 7 MB (see 'Forms / Online services' below);
- or by using the online assistant (see 'Forms / Online services' below).
Information to be declared
In support of the declaration of seized assets, the garnishee must provide information about:
- the declarant;
- the matter giving rise to the seizure;
- the accounts seized;
- the safe deposit boxes containing cash seized;
- the registered owners of the accounts and safe deposit boxes seized;
- the agents of the registered owners of the accounts and safe deposit boxes seized.
Supporting documents
In support of the declaration of seized assets, the garnishee must provide:
- an electronic copy of the (search and) seizure order;
- an electronic copy of the (search and) seizure report.
The garnishee may also attach any further documentation – in particular, documentation on a civil enforcement procedure.
Correcting or cancelling the declaration
The garnishee may amend or cancel the declaration of seized assets, provided the declaration has not yet been forwarded to the BGA.
Processing of the declaration of seized assets
Upon receiving the declaration of seized assets, the BGA will send the declarant an acknowledgement of receipt through MyGuichet.lu.
Transfer of seized assets
Transfer of monies
The BGA must be allowed to handle any seized monies, whether in cash or in the form of balances credited to an account.
Through MyGuichet.lu, the BGA will send the declarant a transfer instruction, detailing how to transfer the assets to the Consignment Office. The declarant must then, without delay, transfer the current balance to the account specified in the transfer instruction.
The current balance is the difference between the balance seized, plus interest earned, and fees incurred since notice of the seizure order was served.
Once the Consignment Office has received the monies, the declarant will be sent a deposit receipt by post.
Transfer of securities
The handling of securities by the BGA is optional and will depend on the decision of the judicial authority that ordered the seizure.
Their disposal may be ordered, following a decision to dispose of a seized asset, handed down by a Luxembourg court ruling in penal matters, or a magistrate, when:
- their value is likely to decrease significantly if they continue to be held; or
- the costs involved are disproportionate to their value.
Following the judicial authority's decision, the BGA will send the declarant:
- either an instruction to dispose of the securities, with a view to:
- their sale by the declarant; and
- the subsequent transfer of the proceeds from the sale to the Consignment Office;
- or a transfer instruction, whereby the securities are to be transferred to a securities account held by the BGA with a financial institution.
Deduction of fees and interest earned
The declarant may deduct expenses incurred (account management fees, transaction fees, etc.) from the balance in the seized account.
Where expenses are to be deducted, the declarant must begin a new 'declaration of expenses' procedure on MyGuichet.lu, providing details of the expenses to be deducted.
Competing seizures of the same assets
Competition between multiple seizures in a criminal matter
In the declaration of seized assets, the declarant must specify whether the same sum of money – either in cash or in a credit balance in an account – has been the subject of multiple seizure orders.
They need only provide the judicial order number of the competing seizure orders, whether Luxembourg-domestic seizures or seizures in performance of an international letter rogatory.
A seizure in a criminal matter clashes with a civil enforcement procedure
The seizure in the criminal matter suspends or precludes any civil enforcement procedure seizing the asset. The creditor which enacted an enforcement procedure before the seizure in the criminal matter is automatically considered to hold a secured right to the asset, taking effect on the date on which that enforcement procedure became enforceable.
In the declaration of seized assets the declarant must specify whether a sum of money – be it in cash or a credit balance in an account – is subject to one or more ongoing civil enforcement procedures.
Thus, they must:
- provide the procedure reference; and
- attach, as supporting documents, a copy of the enforcement orders served upon them.
The BGA will consider the ranking of the various seizures after the current balance has been transferred to the Consignment Office.
A seizure in a criminal matter clashes with a security deposit
When no enforcement proceedings have been started prior to a seizure in a criminal matter, the cash or the credit balance in an account which serve to guarantee the holder's or a third party's engagements, must be transferred to the Consignment Office.
Claims to enforce the guarantee, brought after the date of the seizure, cannot be enforced.
A seizure in a criminal matter clashes with other measures
A seizure in a criminal matter clashes with an asset freeze enforced by the CRF
In the declaration of seized assets, the declarant must specify whether a seizure in a criminal matter conflicts with an asset freeze ordered by the Financial Intelligence Unit (Cellule de renseignement financier – CRF).
The BGA will then contact the CRF to have the freeze lifted before serving the transfer instruction.
A seizure in a criminal matter clashes with a restrictive financial measure
In the declaration of seized assets, the declarant must specify whether a seizure in a criminal matter conflicts with a restrictive financial measure based on the relevant law.
The BGA will then contact the Ministry of Finance (Ministère des Finances) to obtain an exemption before serving the transfer instruction.
Termination of business relations
The declarant is at liberty to carry on or break off a business relationship with the client once the monies have been transferred to the Consignment Office.
Sanctions
Garnishees whose assets have been seized and who fail to declare the seizure will not be subject to criminal sanctions.
However, they could incur civil liability for the damaging consequences of such failure.
Appeal
There is no right of appeal against the order to transfer the seized monies to the Consignment Office.
The BGA will hold the monies until the outcome of the criminal proceedings in the context of which they were seized, and then comply with the judicial decisions concerning the fate of the assets.
Online services and forms
Who to contact
Asset Management Office
-
Ministry of Justice Asset Management Office
- Address:
- 13, rue Erasme L-1468 Luxembourg Luxembourg
- Phone:
- (+352) 247-88559
- Fax:
- (+352) 247-84027
- Email address:
- bga.info@mj.etat.lu
Related procedures and links
Links
Legal references
-
Loi modifiée du 22 juin 2022
portant sur la gestion et le recouvrement des avoirs saisis ou confisqués
-
Loi modifiée du 12 novembre 2004
relative à la lutte contre le blanchiment et contre le financement du terrorisme
-
Loi modifiée du 19 décembre 2000
relative à la mise en œuvre de mesures restrictives en matière financière
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