This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the areas of fraud and counterfeiting of non-cash means of payment. It facilitates the prevention of such offences, and the provision of assistance to and support for victims.
Article 2 -
Definitions
For the purpose of this Directive, the following definitions apply:
(a)
‘non-cash payment instrument’ means a non-corporeal or corporeal protected device, object or record, or a combination thereof, other than legal tender, and which, alone or in conjunction with a procedure or a set of procedures, enables the holder or user to transfer money or monetary value, including through digital means of exchange;
(b)
‘protected device, object or record’ means a device, object or record safeguarded against imitation or fraudulent use, for example through design, coding or signature;
(c)
‘digital means of exchange’ means any electronic money as defined in point (2) of Article 2 of Directive 2009/110/EC of the European Parliament and of the Council (12) or virtual currency;
(d)
‘virtual currency’ means a digital representation of value that is not issued or guaranteed by a central bank or a public authority, is not necessarily attached to a legally established currency and does not possess a legal status of a currency or money, but is accepted by natural or legal persons as a means of exchange, and which can be transferred, stored and traded electronically;
(e)
‘information system’ means information system as defined in point (a) of Article 2 of Directive 2013/40/EU;
(f)
‘computer data’ means computer data as defined in point (b) of Article 2 of Directive 2013/40/EU;
(g)
‘legal person’ means an entity having legal personality under the applicable law, except for states or public bodies in the exercise of state authority and for public international organisations.
TITLE II - OFFENCES
Article 3 -
Fraudulent use of non-cash payment instruments
Member States shall take the necessary measures to ensure that, when committed intentionally, the following conduct is punishable as a criminal offence:
(a)
the fraudulent use of a stolen or otherwise unlawfully appropriated or obtained non-cash payment instrument;
(b)
the fraudulent use of a counterfeit or falsified non-cash payment instrument.
Article 4 -
Offences related to the fraudulent use of corporeal non-cash payment instruments
Member States shall take the necessary measures to ensure that, when committed intentionally, the following conduct is punishable as a criminal offence:
(a)
the theft or other unlawful appropriation of a corporeal non-cash payment instrument;
(b)
the fraudulent counterfeiting or falsification of a corporeal non-cash payment instrument;
(c)
the possession of a stolen or otherwise unlawfully appropriated, or of a counterfeit or falsified corporeal non-cash payment instrument for fraudulent use;
(d)
the procurement for oneself or another, including the receipt, appropriation, purchase, transfer, import, export, sale, transport or distribution of a stolen, counterfeit or falsified corporeal non-cash payment instrument for fraudulent use.
Article 5 -
Offences related to the fraudulent use of non-corporeal non-cash payment instruments
Member States shall take the necessary measures to ensure that, when committed intentionally, the following conduct is punishable as a criminal offence:
(a)
the unlawful obtainment of a non-corporeal non-cash payment instrument, at least when this obtainment has involved the commission of one of the offences referred to in Articles 3 to 6 of Directive 2013/40/EU, or misappropriation of a non-corporeal non-cash payment instrument;
(b)
the fraudulent counterfeiting or falsification of a non-corporeal non-cash payment instrument;
(c)
the holding of an unlawfully obtained, counterfeit or falsified non-corporeal non-cash payment instrument for fraudulent use, at least if the unlawful origin is known at the time of the holding of the instrument;
(d)
the procurement for oneself or another, including the sale, transfer or distribution, or the making available, of an unlawfully obtained, counterfeit or falsified non-corporeal non-cash payment instrument for fraudulent use.
Article 6 -
Fraud related to information systems
Member States shall take the necessary measures to ensure that performing or causing a transfer of money, monetary value or virtual currency and thereby causing an unlawful loss of property for another person in order to make an unlawful gain for the perpetrator or a third party is punishable as a criminal offence, when committed intentionally by:
(a)
without right, hindering or interfering with the functioning of an information system;
(b)
without right, introducing, altering, deleting, transmitting or suppressing computer data.
Article 7 -
Tools used for committing offences
Member States shall take the necessary measures to ensure that producing, procurement for oneself or another, including the import, export, sale, transport or distribution, or making available a device or an instrument, computer data or any other means primarily designed or specifically adapted for the purpose of committing any of the offences referred to in points (a) and (b) of Article 4, in points (a) and (b) of Article 5 or in Article 6, at least when committed with the intention that these means be used, is punishable as a criminal offence.
Article 8 -
Incitement, aiding and abetting and attempt
1. Member States shall take the necessary measures to ensure that inciting or aiding and abetting an offence referred to in Articles 3 to 7 is punishable as a criminal offence.
2. Member States shall take the necessary measures to ensure that an attempt to commit an offence referred to in Article 3, in point (a), (b) or (d) of Article 4, in point (a) or (b) of Article 5 or in Article 6 is punishable as a criminal offence. With regard to point (d) of Article 5, Member States shall take the necessary measures to ensure that at least the attempted fraudulent procurement of an unlawfully obtained, counterfeit or falsified non-corporeal non-cash payment instrument for oneself or another is punishable as a criminal offence.
Article 9 -
Penalties for natural persons
1. Member States shall take the necessary measures to ensure that the offences referred to in Articles 3 to 8 are punishable by effective, proportionate and dissuasive criminal penalties.
2. Member States shall take the necessary measures to ensure that the offences referred to in Article 3, in points (a) and (b) of Article 4 and in points(a) and (b) of Article 5 are punishable by a maximum term of imprisonment of at least two years.
3. Member States shall take the necessary measures to ensure that the offences referred to in points (c) and (d) of Article 4 and in points (c) and (d) of Article 5 are punishable by a maximum term of imprisonment of at least one year.
4. Member States shall take the necessary measures to ensure that the offence referred to in Article 6 is punishable by a maximum term of imprisonment of at least three years.
5. Member States shall take the necessary measures to ensure that the offence referred to in Article 7 is punishable by a maximum term of imprisonment of at least two years.
6. Member States shall take the necessary measures to ensure that the offences referred to in Articles 3 to 6 are punishable by a maximum term of imprisonment of at least five years if they are committed within the framework of a criminal organisation, as defined in Framework Decision 2008/841/JHA, irrespective of the penalty provided for in that Decision.
Article 10 -
Liability of legal persons
1. Member States shall take the necessary measures to ensure that legal persons can be held liable for offences referred to in Articles 3 to 8 committed for their benefit by any person, acting either individually or as part of an organ of the legal person, and having a leading position within the legal person, based on one of the following:
(a)
a power of representation of the legal person;
(b)
an authority to take decisions on behalf of the legal person;
(c)
an authority to exercise control within the legal person.
2. Member States shall take the necessary measures to ensure that legal persons can be held liable where the lack of supervision or control by a person referred to in paragraph 1 has made possible the commission of any of the offences referred to in Articles 3 to 8 for the benefit of the legal person by a person under its authority.
3. Liability of legal persons pursuant to paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are perpetrators or inciters of, or accessories to, any of the offences referred to in Articles 3 to 8.
Article 11 -
Sanctions for legal persons
Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 10(1) or (2) is subject to effective, proportionate and dissuasive sanctions, which shall include criminal or non-criminal fines and which may include other sanctions, such as:
(a)
exclusion from entitlement to public benefits or aid;
(b)
temporary exclusion from access to public funding, including tender procedures, grants and concessions;
(c)
temporary or permanent disqualification from the practice of commercial activities;
(d)
placing under judicial supervision;
(e)
judicial winding-up;
(f)
temporary or permanent closure of establishments which have been used for committing the offence.
TITLE III - JURISDICTION AND INVESTIGATION
Article 12 -
Jurisdiction
1. Each Member State shall take the necessary measures to establish its jurisdiction over the offences referred to in Articles 3 to 8 where one or more of the following apply:
(a)
the offence is committed in whole or in part on its territory;
(b)
the offender is one of its nationals.
2. For the purposes of point (a) of paragraph 1, an offence shall be considered to have been committed in whole or in part on the territory of a Member State where the offender commits the offence when physically present on that territory and irrespective of whether the offence is committed using an information system on that territory.
3. A Member State shall inform the Commission where it decides to establish jurisdiction over an offence referred to in Articles 3 to 8 committed outside its territory, including where:
(a)
the offender has his or her habitual residence in its territory;
(b)
the offence is committed for the benefit of a legal person established in its territory;
(c)
the offence is committed against one of its nationals or a person who is a habitual resident in its territory.
Article 13 -
Effective investigations and cooperation
1. Member States shall take the necessary measures to ensure that investigative tools, such as those which are used in countering organised crime or in other serious crime cases, are effective, proportionate to the crime committed and available to the persons, units or services responsible for investigating or prosecuting the offences referred to in Articles 3 to 8.
2. Member States shall take the necessary measures to ensure that, where national law obliges natural and legal persons to submit information regarding offences referred to in Articles 3 to 8, such information reaches the authorities investigating or prosecuting those offences without undue delay.
TITLE IV - EXCHANGE OF INFORMATION AND REPORTING OF CRIME
Article 14 -
Exchange of information
1. For the purpose of exchanging information relating to the offences referred to in Articles 3 to 8, Member States shall ensure that they have an operational national point of contact available 24 hours a day, seven days a week. Member States shall also ensure that they have procedures in place so that urgent requests for assistance are promptly dealt with and the competent authority replies within eight hours of receipt, by at least indicating whether the request will be answered and the form of such an answer and the estimated time within which it will be sent. Member States may decide to make use of the existing networks of operational points of contact.
2. Member States shall inform the Commission, Europol and Eurojust of their appointed point of contact referred to in paragraph 1. They shall update that information as necessary. The Commission shall forward that information to the other Member States.
Article 15 -
Reporting of crime
1. Member States shall take the necessary measures to ensure that appropriate reporting channels are made available in order to facilitate reporting of the offences referred to in Articles 3 to 8 to law enforcement authorities and other competent national authorities without undue delay.
2. Member States shall take the necessary measures to encourage financial institutions and other legal persons operating in their territory to report suspected fraud to law enforcement authorities and other competent authorities without undue delay, for the purpose of detecting, preventing, investigating or prosecuting offences referred to in Articles 3 to 8.
Article 16 -
Assistance and support to victims
1. Member States shall ensure that natural and legal persons who have suffered harm as a result of any of the offences referred to in Articles 3 to 8 being committed by misusing personal data, are:
(a)
offered specific information and advice on how to protect themselves against the negative consequences of the offences, such as reputational damage; and
(b)
provided with a list of dedicated institutions that deal with different aspects of identity-related crime and victim support.
2. Member States are encouraged to set up single national online information tools to facilitate access to assistance and support for natural or legal persons who have suffered harm as a result of the offences referred to in Articles 3 to 8 being committed by misusing personal data.
3. Member States shall ensure that legal persons that are victims of the offences referred to in Articles 3 to 8 of this Directive are offered the following information without undue delay after their first contact with a competent authority:
(a)
the procedures for making complaints with regard to the offence and the victim's role in such procedures;
(b)
the right to receive information about the case in accordance with national law;
(c)
the available procedures for making complaints if the competent authority does not respect the victim's rights in the course of criminal proceedings;
(d)
the contact details for communications about their case.
Article 17 -
Prevention
Member States shall take appropriate action, including through the internet, such as information and awareness-raising campaigns and research and education programmes, aimed to reduce overall fraud, raise awareness and reduce the risk of becoming a victim of fraud. Where appropriate, Member States shall act in cooperation with stakeholders.
Article 18 -
Monitoring and statistics
1. By 31 August 2019, the Commission shall establish a detailed programme for monitoring the outputs, results and impacts of this Directive. The monitoring programme shall set out the means by which and the intervals at which the necessary data and other evidence will be collected. It shall specify the action to be taken by the Commission and by the Member States in collecting, sharing and analysing the data and other evidence.
2. Member States shall ensure that a system is in place for the recording, production and provision of anonymised statistical data measuring the reporting, investigative and judicial phases involving the offences referred to in Articles 3 to 8.
3. The statistical data referred to in paragraph 2 shall, as a minimum, cover existing data on the number of offences referred to in Articles 3 to 8 registered by the Member States and on the number of persons prosecuted for and convicted of the offences referred to in Articles 3 to 7.
4. Member States shall transmit the data collected pursuant to paragraphs 1, 2 and 3 to the Commission on an annual basis. The Commission shall ensure that a consolidated review of the statistical reports is published each year and submitted to the competent specialised Union agencies and bodies.
Article 19 -
Replacement of Framework Decision 2001/413/JHA
Framework Decision 2001/413/JHA is replaced with regard to the Member States bound by this Directive, without prejudice to the obligations of those Member States with regard to the date for transposition of that Framework Decision into national law.
With regard to Member States bound by this Directive, references to Framework Decision 2001/413/JHA shall be construed as references to this Directive.
Article 20 -
Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 May 2021. They shall immediately inform the Commission thereof.
When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
2. Member States shall communicate to the Commission the text of the measures of national law which they adopt in the field covered by this Directive.
Article 21 -
Evaluation and reporting
1. The Commission shall, by 31 May 2023, submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures to comply with this Directive. Member States shall provide the Commission with the necessary information for the preparation of that report.
2. The Commission shall, by 31 May 2026, carry out an evaluation of the impact of this Directive on combating fraud and counterfeiting of non-cash means of payment, as well as on fundamental rights, and submit a report to the European Parliament and to the Council. Member States shall provide the Commission with necessary information for the preparation of that report.
3. In the context of the evaluation referred to in paragraph 2 of this Article, the Commission shall also report on the necessity, feasibility and effectiveness of creating national secure online systems to allow victims to report any of the offences referred to in Articles 3 to 8, as well as of establishing a standardised Union reporting template to serve as a basis for Member States.
Article 22 -
Entry into force
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
This Directive is addressed to the Member States in accordance with the Treaties.
