EUROPEAN COMMISSION MEMO Strasbourg, 5 February 2013 Proposal to protect the euro and other currencies against counterfeiting Questions and Answers: Why do we need to protect the euro and other currencies? Counterfeiting of the euro and other currencies remains a concern throughout the European Union. The euro is particularly susceptible to counterfeiting on a transnational scale. The EU already has instruments specifically designed to protect the euro, such as the legal framework on authentication of euro notes and coins and an EU programme for awareness raising and training (Pericles programme). The International Convention for the Suppression of Counterfeiting Currency of 1929 (Geneva Convention) lays down rules to ensure that severe criminal penalties and other sanctions can be imposed for counterfeiting offences. In particular Framework Decision 2000/383/JHA requires Member Sates to ensure that counterfeiting offences are punished and penalties imposed. However, Member States have adopted very diverging rules resulting in diverging levels of protection and practices. The current rules therefore need to be strengthened to improve the prevention, investigation and sanctioning of euro counterfeiting throughout the EU. Why is the Commission proposing this Directive? The aim of the Directive is to increase the protection of the euro and other currencies through criminal law measures to achieve an adequate and efficient level of protection across the European Union. The Lisbon Treaty equips the EU with additional tools to tackle this problem through criminal law measures (in particular, Article 83(1) of the Treaty on the Functioning of the European Union). How do levels of sanctions vary across EU Member States? Considerable differences exist with respect to the levels of sanctions applicable in the Member States for the main forms of counterfeiting (production and distribution). Whereas the maximum penalty for producing counterfeits was harmonised in 2000 to at least eight years' imprisonment, the situation concerning the minimum level of sanctions for currency counterfeiting is different. On the one hand, there are either no minimum sanctions in place in some Member States (e.g. Cyprus and Sweden), or legal provisions provide for fines (e.g. Ireland and the Netherlands). On the other hand, the minimum sanction in other Member States is as high as ten years' imprisonment (e.g. Greece and Luxemburg). As to the maximum penalty for distribution of counterfeits, most of the Member States apply in their national law the same level for the offence of production and the offence of uttering and related offences. However, the maximum level of penalties for distribution of counterfeits ranges between four years to twenty years. Several Member States (e.g. Portugal) provide for a significant lower maximum penalty than eight years. MEMO/13/63
Why does the current legal framework need to be strenghtened? The following weaknesses in the legal framework on the protection of the European single currency against counterfeiting were identified: a) Insufficient sanctions The level of penalties for currency counterfeiting is not sufficiently dissuasive and effective. There are important differences between the sanctions foreseen in Member States, which is one of the reasons for insufficient deterrence and uneven protection of the euro and other currencies across the European Union. There are no minimum sanctions in place in some of the Member States, and the minimum sanction in others is as high as ten years' imprisonment. This also hampers cooperation between Member States and makes it potentially attractive for criminals to move their activities to states considered to be more lenient in their reaction to counterfeiting of the euro. b) Cross-border investigations hampered Cross-border investigations and prosecutions may be unsuccessful due to cooperation problems resulting from differences in availability of efficient investigative tools, such as interception of communications, the monitoring of bank accounts and other financial investigations. In some EU Member States (e.g. Italy) currency counterfeiting, which is a common organised crime activity, is still not dealt with by means of investigative tools typically used for organised crime and transnational cases. c) Insufficient prevention If during judicial proceedings seized counterfeits are not transmitted in a timely manner to the competent authorities for analysis, delays in the adjustment of machines for detecting counterfeits will occur, resulting in the counterfeit currency continuing to circulate. Currently there is no obligation to transmit seized counterfeits during judicial proceedings. In practice, in some cases the judicial authorities refuse transferring samples of counterfeit euro notes and coins for analysis prior to the end of the criminal proceedings even if such transfer would be possible taking into account the quantity of seized counterfeits. The transfer of such counterfeits after the end of the criminal proceedings is only of limited value. There are often considerable delays, sometimes years, before the note-handling and coin-processing machines used by financial institutions can be adjusted to detect the counterfeits and prevent such types of counterfeits from further circulating. What are the solutions that the Commission proposes today? Today's priposal for a Directive on the protection of the euro and other currencies against counterfeiting: a) asks Member States to ensure that effective investigative tools are available to facilitate cross-border investigations of currency counterfeiting offences; b) Provides for a timely transmission of seized counterfeits for technical analysis and detection during judicial proceedings to increase the possibility of detecting counterfeit notes and coins in circulation; c) introduces a common definition of the offences related to the currency counterfeiting: the production and distribution of counterfeit notes and coins should be a criminal offence; d) sets a minimum level of criminal sanctions applicable to such offenses increasing deterrence against the main counterfeiting offences (production and distribution). The proposed penalties are proportionate to the seriousness of the offences and the considerable impact of counterfeiting of the euro and other currencies on citizens and businesses. 2
The Proposed sanction system for the production and the distribution of forged banknotes and coins is as follows Step 3: For offences involving notes and coins of a total nominal value of at least EUR 10 000 (or involving particularly serious circumstances) imprisonment of at least six months imprisonment with a maximum penalty of at least eight years Step 2: For offences involving notes and coins of a total nominal value of at least EUR 5 000 penalty of imprisonment maximum penalty of at least eight years Step 1: For offences involving notes and coins of a total nominal value of less than EUR 5 000 (and not involving particularly serious circumstances) member States may provide for a penalty other than imprisonment (such as fines) What investigative tools does this proposal cover? Police officers and prosecutors working on currency counterfeiting cases should have access to the investigative tools used in combating organised or other serious crimes. Such tools include the interception of communications, covert surveillance and the monitoring of bank accounts, whilst taking into account the principle of proportionality and the nature and seriousness of the offences. What offences and levels of sanctions does this proposal cover? Offences include the production of counterfeit notes and coins and their distribution, the production of counterfeiting instruments and components, misuse of legal facilities or material and counterfeiting of currency not yet issued but designated for circulation. The euro is the single currency of the economic and monetary union established by the European Union and a truly European common "good". It should therefore be protected in a consistent manner across the Union, for instance by setting a minimum level of at least six months' imprisonment for large-scale and particularly serious counterfeiting cases. This will reinforce deterrence and judicial cooperation. 3
The proposed penalties are proportionate to the seriousness of the offences and the considerable impact counterfeiting of the euro and other currencies on citizens and businesses. Different thresholds apply depending on the total value of the counterfeits and seriousness of the case (see above). For a case involving counterfeits to a total value of at least 10 000 or particularly serious cases, a penalty of a minimum of at least six months' and a maximum of at least eight years' imprisonment would have to be provided for in the national laws of the Member States. For offences involving counterfeits of less than EUR 5,000, Member States would not have to provide for a minimum prison sentence and a fine could also be imposed. For offences involving between EUR 5,000, and EUR 10,000, Member States would have to provide for a prison sentence. These lower penalties can only be applied for cases which do not concern particularly serious circumstances. Member States could nevertheless impose more stringent provisions than those laid down in the proposal. The general rules and principles of national criminal law on the application and execution of sentences in accordance with the concrete circumstances remain applicable. This means that in individual cases the courts will continue exercising their discretion taking into account all aggravating and mitigating circumstances within the applicable legal framework. National general principles concerning the execution of sentences, such as on early or conditional release would continue to apply. How many euros are counterfeit? According to data assembled by the European Central Bank (ECB), the total established financial damage of counterfeit euros registered in Europe since the introduction of the euro in 2002 amounts to at least EUR 500 million. According to a recent bi-annual report from the ECB, 310 000 counterfeit euro notes to a total value of around EUR 15 million were withdrawn from circulation in the second half of 2011, and the financial damage for the first half of 2012 was about EUR 13 million. The ECB notes an increase of 11.6% as regards the quantity recovered in the second half of 2012 compared to the first six months. As these figures only cover those notes which were detected and seized, a grey zone nevertheless remains. What is the legal basis for this proposal? Under Article 83 of the Treaty on the Functioning of the European Union the EU can adopt directives with minimum rules concerning EU criminal law for particularly serious crimes with a cross-border dimension. If adopted, this proposal would have to be implemented by all participating EU Member States, or they could face legal action before the European Court of Justice. The United Kingdom and Ireland may opt in the Directive, whereas Denmark does not participate in the Directive. What other measures are foreseen to protect the euro? The Framework Decision is part of a comprehensive legal framework consisting also of administrative and training measures, such as: Council Regulation (EC) No 1338/2001 regulates how euro notes and coins can be uttered in such a manner as to protect them against counterfeiting. It also addresses issues such as gathering and accessing technical and statistical data relating to counterfeit notes and coins, the examination of counterfeit notes and coins by the National Analysis Centres, obligations of credit institutions and the centralisation of information at national level. 4
Decision of the European Central Bank (ECB/2010/14) on the authenticity, fitness checking and recirculation of euro notes. Regulation (EU) No 1210/2010 of the European Parliament and of the Council concerning authentication of euro coins and handling of euro coins unfit for circulation. Council Decision 2005/511/JHA on protecting the euro against counterfeiting, by designating Europol as the Central Office for combating euro counterfeiting. Council Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime by stimulating and improving coordination and cooperation between competent judicial authorities of the Member States also in the field of counterfeiting of the euro. Targeted actions for exchange, assistance and training of law enforcement agents with the aim of establishing closer professional ties, are financed by the Union through the Pericles programme. What are the next steps towards improved protection of the euro? The proposal will now be transmitted to the co-legislators, the European Parliament and the Council for discussion and adoption according to the ordinary legislative procedure (codecision). See also IP/13/88 5