On Tuesday 6 March, the ambassadors of the member states to the EU (Coreper) will examine the compromise text of the Bulgarian Presidency of the Council of the EU on the proposed directive to tackle fraud and counterfeiting in non-cash payment instruments (see EUROPE 11865). Coreper must decide whether or not to submit the text on Friday to the European justice ministers, with a view to a political agreement in principle ('general approach').
Readers may recall that the proposed directive lists actions related to the fraud and counterfeiting of non-cash payment resources, which the member states must make criminal offences.
The main changes brought in by the Council include a distinction between tangible non-cash payment resources, such as cheques or postal orders (article 4), and intangible ones such as bank transfers, electronic wallets or virtual currencies (article 4a).
Criterion of intent. As announced in a previous edition (see EUROPE 11962), the question of the criterion of intent for the list of infractions listed in articles 4 and 4a has been particularly discussed and a number of options considered.
According to the latest version of the Bulgarian compromise text dated 26th February, of which EUROPE has had sight, it is now proposed that illegally obtaining an intangible payment instrument be made a criminal offence, “at least for cases which are not minor”.
This proposal gains the new recital 9b, specifying that member states may determine what constitutes a 'minor case' in line with their legislation and national practice. The text adds that a case may be considered minor if, for instance, there was no intent to make fraudulent use of the payment instrument in any possible way.
Level of sentencing. According to the document, the member states also agreed to reduce the minimum and maximum sentences in place for natural persons, with the exception of Italy and Portugal, which are calling for higher levels.
In its initial proposal, the Commission proposed that infringements related to information systems, the fraudulent use of payment instruments and infringements in preparation for such use carry a maximum prison sentence of at least three years. For its part, the Council proposes two years.
The member states also halved the maximum prison sentence proposed by the Commission for making tools used to commit such crimes available, setting it at one year.
As regards the sanctions for legal persons, on the other hand, the Council got behind the Commission's proposal for alternative sanctions such as: - the exclusion of the benefit of a public advantage or aid; - a temporary or permanent ban on exercising commercial activities; - placing the legal person under judicial supervision; - a judicial winding-up order; or - the temporary or permanent closure of establishments used to commit a criminal offence.
The member states furthermore wish to increase the transposition period to 30 months, as against the 24 months proposed by the Commission.
According to a European source, the Bulgarian Presidency has ramped up its work in recent weeks in order to achieve a balanced compromise and remains confident that it will be possible to reach a political agreement in principle on this text on Friday 9 March. (Original version in French by Marion Fontana)