Explanatory Memorandum to COM(2000)492 - Protection of the euro against counterfeiting - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2000)492 - Protection of the euro against counterfeiting. |
|---|---|
| source | COM(2000)492  |
| date | 26-07-2000 |
Contents
- 1.1. Institutional background
- 1.2. Content of the proposed Regulation
- 1.3. Link with the legal framework of Europol
- 1.4. Cooperation between Europol and the Commission and between Europol and the European Central Bank (ECB)
- 2. Specific commentary on the articles
- Article 2
- Article 3
- Article 4
- Article 5
- Article 6
- Article 7
- Article 8
- Article 9
- Article 10
- Article 11
- Article 12
- Article 13
- Article 14
In its Recommendation of 7 July 1998 regarding the adoption of certain measures to enhance the legal protection of euro banknotes and coins, i the European Central Bank suggests that Community legislation for the legal protection of the euro be put in place.
The Commission Communication to the Council, the European Parliament and the European Central Bank of 22 July 1998 on Protection of the euro - Combating counterfeiting i spelled out the issues and objectives at stake as regards the protection of the single currency and specified the responsibilities of the European Central Bank, the Commission and Europol, taking the Geneva Convention of 20 April 1929 for the suppression of counterfeiting currency i as its starting point.
On 29 April 1999 the Council extended Europol's mandate to measures to combat currency counterfeiting and the falsification of means of payment. i
On 29 May 2000 a Council framework Decision on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro was adopted. i
The proposal is based on the third sentence of Article 123 i and Article 308 of the EC Treaty. It covers three main subjects:
- the processing of technical information on counterfeiting;
- the processing of operational strategic data;
- cooperation and mutual assistance.
This Regulation should in due course be amplified by an extension to Europol's mandate to cover more specific aspects of the protection of the euro and by such other adjustments as are found to be necessary, including clarification of the procedures to be complied with for Europol participation in joint investigations. The amendment would be made by the Council, after examination by Europol's Management Board, on the basis of Article 43 i of the Europol Convention.
The form and content of the enriched and amplified definition could be covered by a preliminary draft to be examined with Europol.
1.4. Cooperation between Europol and the Commission and between Europol and the European Central Bank (ECB)
To define the conditions for access to information and cooperation in the exchange of strategic information between Europol and the Commission and between Europol and the European Central Bank so as to cover raw data, data that are being or have been processed and statistical data, in the light of the respective needs of the Commission and the ECB at the same time, provision should be made, alongside this Regulation, either for a tripartite agreement or for two separate agreements on the basis of Article 42 i of the Europol Convention and Articles 2 and 7 of the Decision of the Europol Management Board of 15 October 1998 laying down the rules governing Europol's external relations with European Union-related bodies. i This agreement could also provide for a structure for coordination between the Commission, the ECB and Europol at departmental level and if necessary at high level.
The Commission, on the basis of a preliminary draft agreement, could then organise consultations with the ECB and Europol.
1.5. It should also be proposed in due course that a standard clause governing cooperation in combating euro counterfeiting be inserted in future cooperation agreements with non-member countries, including operational cooperation.
1.6. The Commission will secure continuity in work done since 1998 with the euro counterfeiting experts group under the Advisory Committee attached to the Commission, to facilitate the definition and adjustment of the overall Community approach to protection of euro notes and coins. In particular, the experts will be associated with current and future multidisciplinary training measures for all those actively involved in preventing and combating counterfeiting, both in the Community and elsewhere. This work will amplify the work of other advisory groups (notably at Europol and the ECB).
Article 1
This Article contains the necessary definitions (counterfeit euro notes and coins, technical data and operational and strategic data, Geneva Convention (International Convention for the suppression of counterfeiting currency, 1929)).
In the event of disagreement as to whether notes or coins are counterfeit or not, the European Central Bank and the Member States will have to decide whether there is or is not a risk of confusion with euros circulating lawfully. Information on counterfeit euro notes is coded so as to classify counterfeits by type and variation and details of techniques and specifications for the production of suspect notes.
This Article refers to relevant national authorities. These authorities are to be designated by the Member States. Recitals 8 and 9 refer to authorities responsible for analysing and identifying counterfeit euro notes and coins.
This Article concerns technical data relating to counterfeit euro notes and coins compiled and indexed by the relevant national authorities and stored and processed by the European Central Bank. The ECB will also gather technical information relating to counterfeit euros from non-member countries.
Relevant national authorities for the purposes of this Article relating to the transmission of counterfeit euro notes mean the national central bank or the national analysis centre (NAC). The provision requiring the European Central Bank to notify the authorities concerned of the final result of its analysis without delay means that it must do so once the first administrative report or the first reference to the court has been made. The ECB must give a European code number within two months.
On 28 February 2000 the ECOFIN Council approved a technical system responsible for counterfeit euro coins. For the purposes of this Article relating to the transmission of counterfeit euro coins, relevant national authorities means the CNAC (Coin National Analysis Centre). This provision is directly applicable also in the non-participating Member States.
A comparative law analysis done by the euro counterfeiting group of the Commission Advisory Committee for the Coordination of the Fight Against Fraud, and the European Central Bank report on the legal protection of banknotes of November 1999, indicate that there are considerable differences in the Member States' legal systems as regards the obligations of credit institutions to cooperate in combating currency counterfeiting. This situation generates a need for rules imposing obligations on credit institutions, with effective, proportionate and dissuasive penalties in the event of negligent or intentional infringement of them.
The Unit to combat euro counterfeiting will operate through Europol infrastructures. The establishment of the Unit will require an administrative decision by Europol. Europol can accept the material tasks provided for by this Regulation, in some appropriate form, since the tasks are intimately bound up with its mandate in relation to counterfeiting of currency and means of payment. The independence conferred on the Unit requires its staff to be covered by European rules, excluding liaison officers and members of the Europol national units, rather than national rules.
This Article specifies the tasks to be entrusted to the Unit provided for by Article 7. As the euro counterfeiting experts (Commission Advisory Committee) acknowledged, the Unit must be in a position, among other things, to provide all the assistance needed by the authorities of the Member States, in particular scientific support. It must also be able to cooperate with the European Central Bank and the Commission in meeting their respective needs.
The Member States must ensure that their national central offices established on the basis of the Geneva Convention 1929 have all the information available at national level regarding euro counterfeiting.
The obligation, from the time of the first administrative or judicial report, to report all detected cases of euro counterfeiting to the information system managed by the Unit provided for by Article 7 is imposed on the national central offices via the Europol national units. The national central offices must regularly update the information and notify information relating to stages reached in the procedure and the monitoring of prosecutions; if necessary they are to seek authorisation from the relevant judicial authority. The reports must take account of developments in the procedure (seizures of counterfeit euros, searches, arrests, charges). The objective of the information system managed by the Unit, centred on an operational and strategic database and terminals at each national central office, is to allow direct access for the central offices in the Member States.
Combating counterfeiting requires mutual assistance between the relevant authorities involving all useful forms of information, similar to the existing practice in other areas of Community law. The Member States are to ensure that the requested national authorities notify the requesting national authority of any information that may be of assistance to it in detecting and identifying counterfeits and combating euro counterfeiting.
The Member States are to ensure that the e-mail system managed by the Unit provided for by Article 7 is established to allow real-time cooperation in the form of immediate European-level action by the relevant authorities (system available 24 hours a day, and interactive with the operational and strategic database).
The Member States are to ensure that the Unit provided for by Article 7 gathers operational and strategic information from non-member countries. Cooperation with non-member countries includes technical and administrative assistance, in particular so as to fully apply the cooperation provided for by the Geneva Convention, establish central structures for protection of the euro against counterfeiting, improve the effectiveness of the institutions responsible for combating euro counterfeiting and contribute to training specialised staff. All the relevant authorities of the Member States receiving information on euro counterfeiting occurring in non-member countries, with support from Europol and the Commission, will make their staff available.
The principle of the equivalence of the protection offered by Parliament and Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and the free movement of such data i is recognised; it implies that:
- all data gathering and processing operations must be undertaken fairly and lawfully;
- data must be gathered for the purposes defined by the Regulation and may not, therefore, be processed for purposes that are incompatible with its purposes;
- the data must be adequate, relevant and proportionate to the purposes for which they are processed;
- the data must be accurate and, where necessary, updated;
- the data must be stored in such a form that identification of the individuals concerned is possible only during a period not exceeding what is necessary for the attainment of the objectives pursued.
In addition, data relating to technical security is covered by obligations of professional secrecy.