The Bulgarian Presidency of the Council of the EU has announced in its work programme (see EUROPE 11933) that one of its priorities will be to combat fraud and counterfeiting of non‑cash means of payment. It has also indicated that it wants to tackle this issue at its first formal Justice and Home Affairs Council meeting on 8-9 March next and that it is hoping to obtain a general approach in this connection.
It should be recalled that the draft directive presented in September 2017 (see EUROPE 11865) expands the scope of the current Council framework decision 2001/413/JHA to virtual currencies and makes fraud through non-cash means of payment a criminal offence. It is also seeking to clarify the extent of the jurisdiction of member states regarding these offences and introduce common rules for sentencing.
In a working paper, the Bulgarian Presidency indicates that the work carried out under the Estonian Presidency constitutes a good basis for the adoption of a general approach at the Council. Nonetheless, it identifies a number of key questions that still require detailed examination at an experts' level, including the scope of application for infringements and penalties.
Criminal offences covered by the directive. The draft directive sets out a list of action relating to fraud and counterfeiting through non-cash payments that the member states should take by imposing appropriate sentences.
According to this paper, several member states are in favour of limiting the scope of application to criminal offences, in an effort to exclude behaviour deemed less serious. The following possibilities are being examined: conditions applying to the criminal intention of obtaining payment other than cash, such as breach of security measures; including special intention criteria in certain provisions, particularly with regard to the term, “use for fraudulent purposes" for counterfeiting and the falsification of payments; limiting criminal offences involving attempts to commit an offence to certain delineated offences instead of including it for all offences covered by the directive. This latter point is supported by Germany, Finland, Latvia and Sweden.
Other member states, including Belgium, France, Italy and Spain, are, on the contrary, opposed to introducing these limits and support broader harmonisation of national legislation for criminal sentences.
How should minors be treated in this context? The paper also indicates that the member states are also struggling to reach an agreement on what penalties should be imposed on natural persons. A compromise has already been put on the table by the Estonian Presidency reducing the scope of the minimum and maximum sentences allowed.
In its initial proposal, the Commission proposed that infringements relating to computer systems, the fraudulent use of payment instruments and offences involving preparation for this kind of use are subject to a maximum prison sentence of at least three years. It is also wants the supplying of tools used to commit these offences to be subject to a maximum prison sentence of at least two years.
The compromise in question stipulates that these sentences will only apply to cases “not involving minors”. This solution, however, was sharply criticised by certain member states that consider this notion as too vague. These countries include France, Italy and Romania. The Bulgarian Presidency considers that a possible alternative would include removing this addition and directly reducing the sentences.
Discussions are continuing at the working group until 31 January next. (Original version in French by Marion Fontana)