THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 83(1) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Central Bank,
Having regard to the opinion of the European Economic and Social Committee,
Acting in accordance with the ordinary legislative procedure,
Whereas:
(1)
As the single currency shared by the Member States of the euro area, the euro has become an important factor in the Union's economy and the everyday life of its citizens. However, since its introduction in 2002, as a currency continuously targeted by organised crime groups active in money counterfeiting, counterfeiting of the euro has caused financial damage of at least EUR 500 million. It is in the interests of the Union as a whole to oppose and pursue any activity that is likely to jeopardise the authenticity of the euro by counterfeiting.
(2)
Counterfeit money has a considerable ill-effect on society. It harms citizens and businesses that are not reimbursed for counterfeits even if received in good faith. It could lead to consumer concerns regarding the sufficient protection of cash and to the fear of receiving counterfeit notes and coins. It is therefore of fundamental importance to ensure trust and confidence in the authenticity of notes and coins for citizens, businesses and financial institutions in all Member States as well as in third countries.
(3)
It is essential to ensure that effective and efficient criminal law measures protect the euro and any other currency whose circulation is legally authorised in an appropriate way in all Member States.
(4)
Council Regulation (EC) No 974/98 obliges the Member States whose currency is the euro to ensure adequate sanctions against counterfeiting and falsification of euro notes and coins.
(5)
Council Regulations (EC) No 1338/2001 and (EC) No 1339/2001 lay down measures necessary for the protection of the euro against counterfeiting, in particular measures to withdraw counterfeit euro notes and coins from circulation.
(6)
The International Convention for the Suppression of Counterfeiting Currency signed at Geneva on 20 April 1929 and its Protocol (the ‘Geneva Convention’) lays down rules to effectively prevent, prosecute and punish the offence of counterfeiting currency. In particular, it aims at ensuring that severe criminal penalties and other sanctions can be imposed for offences of counterfeiting currency. All contracting parties to the Geneva Convention have to apply the principle of non-discrimination to currencies other than their domestic currency.
(7)
This Directive supplements the provisions and facilitates the application of the Geneva Convention by the Member States. To that end, it is important that the Member States are parties to the Geneva Convention.
(8)
This Directive builds on and updates Council Framework Decision 2000/383/JHA. It complements that Framework Decision with further provisions on the level of sanctions, on investigative tools and on the analysis, identification and detection of counterfeit euro notes and coins during judicial proceedings.
(9)
This Directive should protect any note and coin whose circulation is legally authorised, irrespective of whether it is made of paper, metal or any other material.
(10)
The protection of the euro and other currencies calls for a common definition of the criminal offences related to the currency counterfeiting as well as for common, effective, proportionate and dissuasive sanctions both for natural and legal persons. In order to ensure consistency with the Geneva Convention, this Directive should provide for the same offences to be punishable as in the Geneva Convention. Therefore, the production of counterfeit notes and coins and their distribution should be a criminal offence. Important preparatory work to those offences, for example the production of counterfeiting instruments and components, should be punished independently. The common aim of those definitions of offences should be to act as a deterrent to any handling of counterfeit notes and coins, instruments and other means for counterfeiting.
(11)
The misuse of legal facilities or material of authorised printers or mints for the production of unauthorised notes and coins for fraudulent use should also be a criminal offence. Such misuse covers the situation where a national central bank or mint or other authorised industry produces notes or coins exceeding the quota authorised by the European Central Bank (ECB). It also covers the situation where an employee of an authorised printer or mint abuses the facilities for his or her own purposes. That conduct should be punishable as a criminal offence even if the authorised quantities have not been exceeded, because the notes and coins produced would, once circulated, not be distinguishable from authorised currency.
(12)
Notes and coins which the ECB or the national central banks and mints have not yet formally issued should also fall under the protection of this Directive. Thus, for instance, euro coins with new national sides or new series of euro notes should be protected before they have officially been put into circulation.
(13)
Incitement, aiding and abetting and attempt to commit the main counterfeiting offences, including the misuse of legal facilities or material and including the counterfeiting of notes and coins not yet issued but designated for circulation, should also be penalised where appropriate. This Directive does not require Member States to render punishable an attempt to commit an offence relating to an instrument or component for counterfeiting.
(14)
Intention should be a part of all the elements constituting the offences laid down in this Directive.
(15)
Currency counterfeiting is traditionally a crime subject to a high level of sanctions in the Member States. That is due to the serious nature and the impact of the crime on citizens and businesses, and due to the need to ensure the trust of citizens and businesses in the genuine character of the euro and other currencies. That holds particularly true for the euro, which is the single currency of over 330 million people in the euro area and which is the second most important international currency.
(16)
Member States should provide for criminal sanctions in their national law in respect of the provisions of Union law on combating currency counterfeiting. Those sanctions should be effective, proportionate and dissuasive and should include imprisonment. The minimum level of the maximum term of imprisonment provided for in this Directive for the offences laid down herein should apply at least to the most serious forms of those offences.
(17)
The levels of the sanctions should be effective and dissuasive but should not go beyond what is proportionate to the offences. Although intentionally passing on counterfeit currency which has been received in good faith could be sanctioned with a different type of criminal sanction, including fines, in the national law of the Member States, those national laws should provide for imprisonment as a maximum sanction. Imprisonment sanctions for natural persons will serve as a strong deterrent for potential criminals, with effect all over the Union.
(18)
As this Directive establishes minimum rules, Member States can adopt or maintain more stringent rules for currency counterfeiting offences.
(19)
This Directive is without prejudice to the general rules and principles of national criminal law on the application and execution of sentences in accordance with the concrete circumstances in each individual case.
(20)
Since confidence in the genuine character of notes and coins can also be harmed or threatened by the conduct of legal persons, legal persons should be liable for the offences committed on their behalf.
(21)
To ensure the success of investigations and the prosecution of currency counterfeiting offences, those responsible for investigating and prosecuting such offences should have the possibility to make use of effective investigative tools such as those which are used in combating organised crime or other serious crimes. Such tools could, where appropriate, include, for example, the interception of communications, covert surveillance including electronic surveillance, the monitoring of bank accounts and other financial investigations. Taking into account, inter alia, the principle of proportionality, the use of such tools in accordance with national law should be commensurate with the nature and gravity of the offences under investigation. The right to the protection of personal data should be respected.
(22)
Member States should establish their jurisdiction in a manner consistent with the Geneva Convention and the provisions on jurisdiction in other Union criminal law, that is to say, over offences committed on their territory and over offences committed by their nationals, noting that in general offences are best dealt with by the criminal justice system of the country in which they occur.
(23)
The pre-eminent role of the euro for the economy and society of the Union, as well as the specific threat to the euro as a currency of worldwide importance as manifested by the existence of a considerable number of print-shops located in third countries, calls for an additional measure to protect it. Therefore, jurisdiction should be established over offences relating to the euro committed outside the territory of a given Member State if either the offender is in the territory of that Member State and is not extradited, or counterfeit euro notes or coins relating to the offence are detected in that Member State.
Given the objectively different situation of the Member States whose currency is the euro, it is appropriate that the obligation to establish such jurisdiction only applies to those Member States. For the purpose of prosecution of the offences laid down in point (a) of Article 3(1), Article 3(2) and (3), where they relate to point (a) of Article 3(1), as well as incitement, aiding and abetting, and attempt to commit those offences, jurisdiction should not be subordinated to the condition that the acts constitute an offence at the place where they were committed. When exercising such jurisdiction, Member States should take into account whether the offences are being dealt with by the criminal justice system of the country where they were committed, and should respect the principle of proportionality, in particular with regard to convictions by a third country for the same conduct.
(24)
For the euro, the identification of counterfeit euro notes and coins is centralised at the National Analysis Centres and the Coin National Analysis Centres respectively, which are designated or established in accordance with Regulation (EC) No 1338/2001. The analysis, identification and detection of counterfeit euro notes and coins should also be possible during on-going judicial proceedings in order to accelerate the detection of the source of production of counterfeits in a given criminal investigation or prosecution and to avoid and stop such types of counterfeits from further circulation, with due respect for the principle of a fair and effective trial. That would contribute to the efficiency of combating counterfeiting offences and would at the same time increase the number of transmissions of seized counterfeits during on-going criminal proceedings, subject to limited exceptions where only access to counterfeits should be provided. In general, the competent authorities should authorise the physical transmission of the counterfeits to the National Analysis Centres and Coin National Analysis Centres. In certain circumstances, for example where only a few counterfeit notes or coins constitute the evidence for the criminal proceedings, or where physical transmission would result in the risk of destruction of evidence, such as fingerprints, the competent authorities should instead be able to decide to give access to the notes and coins.
(25)
There is a need to collect comparable data on the offences laid down in this Directive. In order to gain a more complete picture of the problem of counterfeiting at Union level and thereby contribute to formulating a more effective response, Member States should transmit to the Commission relevant statistical data relating to the number of offences concerning counterfeit notes and coins and the number of persons prosecuted and sentenced.
(26)
In order to pursue the objective of fighting the counterfeiting of euro notes and coins, the conclusion of agreements with third countries, in particular those countries that use the euro as a currency, should be pursued in accordance with the relevant Treaty procedures.
(27)
This Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and notably the right to liberty and security, the respect for private and family life, the freedom to choose an occupation and right to engage in work, the freedom to conduct a business, the right to property, the right to an effective remedy and to a fair trial, the presumption of innocence and right of defence, the principles of the legality and proportionality of criminal offences and penalties, as well as the right not to be tried or punished twice in criminal proceedings for the same criminal offence. This Directive seeks to ensure full respect for those rights and principles and should be implemented accordingly.
(28)
This Directive aims to amend and expand the provisions of Framework Decision 2000/383/JHA. Since the amendments to be made are of a substantial number and nature, that Framework Decision should in the interests of clarity be replaced in its entirety for the Member States bound by this Directive.
(29)
Since the objective of this Directive, namely to protect the euro and other currencies against counterfeiting, cannot be sufficiently achieved by the Member States but can rather, by reasons of its scale and effects, be better achieved at Union level, the Union may adopt the measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (‘TEU’). In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.
(30)
In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark annexed to the TEU and to the Treaty on the Functioning of the European Union (‘TFEU’), Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.
(31)
In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and to the TFEU, Ireland has notified its wish to take part in the adoption and application of this Directive.
(32)
In accordance with Articles 1, 2 and 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, the United Kingdom is not taking part in the adoption of this Directive and is not bound by it or subject to its application,
HAVE ADOPTED THIS DIRECTIVE: