On Friday 9 March, the European justice ministers reached a political agreement in principle ('general approach') on the directive aiming to fight against fraud and counterfeiting by means of payment other than cash (see EUROPE 11865).
While the member states succeeded in overcoming their differences in a spirit of "compromise", many are left unsatisfied. Belgium, Luxembourg and Poland particularly expressed regret as to the ambition of the text. Belgium's minister, Koen Geens, said the negotiations have ended up in a "decline" compared with the initial proposal.
Romania is reported to have wanted a higher level of sanctions, while Italy apparently wanted a minimum level to be set for the sanctions. As for Slovenia, it is reported to have wanted the text to propose "solutions with the test of time".
But a few days from the ministers' meeting, the concerns are about the constitutional difficulties raised by Germany as to the intended criterion for the list of infringements mentioned in Articles 4 (tangible means of payment) and 4a (intangible). Speaking about this question, Germany's Secretary of State for Justice Christianne Wirtz said she would join a statement setting out the German position to the minutes of this meeting, which gave rise to "such intensive" negotiations, while saying that this would not contain a request to amend the content.
According to EUROPE's sources, the statement explains that German constitutional law has set strict limits on Germany's participation in criminal legislation at EU level, and returns to the conclusions of the German Constitutional Court in its ruling on the Lisbon Treaty of 2009.
The latest version of the text, approved by the ambassadors of the member states to the EU (Coreper) on 7 March (see EUROPE 11976), again changes Recital 9b on the intended criterion (see EUROPE 11962) and now takes into account the illegal procurement of an instrument of intangible payment other than cash made by a "misappropriation of the instrument" – in other words, a person who has been entrusted an instrument of payment using it knowingly, without having the right to do so, for his own profit or that of another.
The new text also states that the acquisition of such an illegally obtained instrument for the purposes of fraudulent use should be punishable, without it being necessary to establish all the factual elements of its illegal procurement, and still less it being necessary to require that there be an earlier or simultaneous condemnation for the main infringement generating the illegal procurement.
The level of penalties established in the previous version of the text (see EUROPE 11974) has not been changed.
Bulgaria's Minister for Justice Tsetska Tsacheva recognised that the compromise was not perfect, but nevertheless said that in her opinion it was "the best result possible", given the differences of opinion.
The European ministers now hope that the inter-institutional negotiations with the European Parliament will enable the level of ambition to be met or at least not lowered any further. (Original version in French by Marion Fontana)