Opinion of the European Central Bank of 28 August 2000 at the request of the Irish Department of Justice, Equality and Law Reform on a draft legislative proposal on the counterfeiting of euro-denominated notes and coins (CON/00/16)
Date: 2000-08-28
Institutions: European Central Bank
Subjects: Ireland, counterfeiting, euro, fight against crime, money, national law, penalty

OPINION OF THE EUROPEAN CENTRAL BANK

of 28 August 2000

at the request of the Irish Department of Justice, Equality and Law Reform on a draft

legislative proposal on the counterfeiting of euro-denominated notes and coins 

CON/00/16

1.

On 7 July 2000 the European Central Bank (ECB) received a request from the Irish Department

of Justice, Equality and Law Reform for an ECB opinion on a draft Criminal Justice (Theft and

Fraud Offences) Bill, 2000.

2.

The  ECB’s  competence  to  deliver  an  opinion  is  based  on  Article 2  of  Council  Decision

98/415/EC  of  29 June  1998  on  the  consultation  of  the  European  Central  Bank  by  national

authorities  regarding  draft  legislative  provisions1,  as  the  legislative  proposal  contains

provisions concerning currency matters. In accordance with Article 17.5, first sentence, of the

Rules of Procedure of the European Central Bank, this ECB opinion has been adopted by the

Governing Council of the ECB.

3. 

Part 5 and Section 56 of the draft Bill establish the criminal law regime under Irish law for the

counterfeiting of currency notes and coins, the passing of counterfeit currency notes or coins,

the  custody  or  control  of  counterfeit  currency,  the  custody  or  control  of  any  thing  used  for

making counterfeit currency, the import and export of counterfeits and the criminal liability for

offences committed by artificial legal persons (e.g., bodies corporate and unincorporated). It is

noted,  in  particular,  that  the  draft  Bill  makes  provision  for  the  following:  (1)  ‘currency  note’

and  ‘coin’  are  defined  to  mean,  respectively,  a  currency  note  and  coin  lawfully  issued  or

customarily  used  as  money  in  the  Irish  State  or  in  any  other  State  and  include  a  note

denominated in the euro unit and a coin denominated in euro or in cent, whether issued or not;

(2) a person who outside the Irish State makes a counterfeit of a currency note or coin, with the

intention that he or she or another shall pass or tender it in any Member State of the European

Union as genuine, is guilty of an offence, and is liable on conviction on indictment to a fine or

imprisonment for a term not exceeding 10 years or both; and (3) a person who without lawful

authority  or  excuse  imports  into,  or  exports  from,  a  Member  State  of  the  European  Union  a

counterfeit  of  a  currency  note  or  coin  is  guilty  of  an  offence,  and  is  liable  on  conviction  on

indictment to a fine or imprisonment for a term not exceeding 10  years or both. 

4. 

The ECB recalls its recommendation of 7 July 1998 regarding the adoption of certain measures

to enhance the legal protection of euro  banknotes  and  coins  (ECB/1998/7)2,  and  in  particular

the ECB’s recommendation that the Council of the European Union, the European Commission

and the Member States should consider a review of current policies to combat counterfeiting,

inter alia evaluating the need for harmonisation of penal laws in the field of counterfeiting. In

this  regard,  the  ECB  notes  that  Article  12  of  Council  Regulation  (EC)  No  974/98  of  3  May

1998 on the introduction of the euro3 obliges the Member States participating in economic and

monetary  union  to  ensure  adequate  sanctions  against  counterfeiting  and  falsification  of  euro

banknotes and coins. 

5.  With respect to the Council Framework Decision of 29 May 2000 on increasing protection by

criminal penalties and other sanctions against counterfeiting in connection with the introduction

of  the  euro  (2000/383/JHA),4  the  ECB  notes  that  Member  States  are  required  to  take  the

necessary  measures  to  comply  with  this  framework  Decision  by  31  December  2000  as  far  as

Article 5(a) of the framework Decision is concerned and not later than 29 May 2001 as far as

the other provisions of the framework Decision are concerned. By the same dates the Member

States are required to transmit to the General Secretariat of the Council, the Commission and

the ECB the text of the provisions transposing into their national law the obligations imposed

on them under this framework Decision, and the Council will, by 30 June 2001 at the latest, on

the basis of this information and a written report by the Commission, assess the extent to which

Member  States  have  taken  the  necessary  measures  in  order  to  comply  with  this  framework

Decision. 

6. 

Under  Article  2  of  the  framework  Decision  the  Member  States  that  have  not  yet  done  so

undertake  to  accede  to  the  International  Convention  of  20  April  1929  for  the  Suppression  of

Counterfeiting  Currency  and  its  Protocol.  The  ECB  understands  that  Ireland  ratified  the

Convention and its Protocol on 24 July 1934, and notes that a text evidencing the transposition

of the Convention and its Protocol into Irish law has to be transmitted to the ECB not later than

29 May 2001. 

1 OJ L 189, 3.7.1998, p. 42-43.
2 OJ C 246, 6.8.1998, p. 9.

3 OJ L 139, 11.5.1998, pp. 1-5.

                                                                                                                                                                                    
7. 

Article  3(2)  of  the  framework  Decision  requires  each  Member  State  to  take  the  necessary

measures to ensure that participating in and instigating the conduct referred to in Article 3(1) of

the  framework  Decision,  and  attempting  the  conduct  referred  to  in  points  (a)  to  (c)  of  said

Article 3(1), are punishable. The ECB notes that a text evidencing the transposition, as a matter

of  general  Irish  criminal  law,  of  the  inchoate  criminal  offences  of  attempting,  conspiring  or

inciting the commission  of  offences  covered  by  said  Article  3(1)  has  to  be  transmitted  to  the

ECB not later than 29 May 2001.

8. 

Article 4 of the framework Decision requires that Member States ensure that conduct referred

to  in  Article  3  is  also  punishable  with  respect  to  banknotes  or  coins  being  or  having  been

manufactured by use of legal facilities or materials in violation of the rights of the competent

authorities.  Further  consideration  may  need  to  be  given  to  whether  the  scope  of  Section

31(2)(a)  of  the  draft  Bill  sufficiently  covers  this  offence  by  extending  the  concept  of  a

counterfeit to a currency note or coin that ‘resembles a currency note or coin (whether on one

side only or both) to such an extent that it is reasonably capable of passing for a currency note

or coin of that description’.

9. 

Under Article 5 of the framework Decision each Member State is required to take the necessary

measures  to  ensure  that  the  conduct  under  Articles  3  and  4  of  the  framework  Decision  is

punishable if (a) it relates to the future banknotes and coins of the euro and is committed before

1  January  2002;  and  (b)  it  relates  to  banknotes  and  coins  which  are  not  yet  issued  but  are

designated for circulation, and are of a currency which is legal tender. Section 31(1) of the draft

Bill refers to euro banknotes and coins ‘whether issued or not’. Further consideration may need

to  be  given  to  whether  this  formula  should  be  more  closely  tied  to  the  precise  wording  of

Article  5  of  the  framework  Decision.  In  this  context,  it  could  also  be  considered  whether

Section 31(1) of the draft Bill, which refers to ‘a note denominated in the euro unit’, could be

simplified by referring to ‘a note denominated in euro’.

10.  The ECB notes that Article 7(2) of the framework Decision requires that at least the Member

States  in  which  the  euro  has  been  adopted  take  the  appropriate  measures  to  ensure  that  the

prosecution of counterfeiting, at least in respect of the euro, is possible, independently of the

nationality  of  the  offender  and  the  place  where  the  offence  has  been  committed  (the

universality  principle).  The  ECB  notes  that  under  the  draft  Bill  the  only  criminal  offences

4 OJ L 140, 14.6.2000, p. 1.

                                                                                                                                                                                    
committed outside the Irish State which are proposed  to  constitute  punishable  offences  under

the draft Bill are the offences of (a) a person making a counterfeit of a currency note or coin

outside  the  State  with  the  intention  that  he  or  she  or  another  shall  pass  or  tender  it  in  any

Member State of the European Union as genuine (Section 32(2));  and  (b)  a  person  importing

into, or exporting from, a Member State of the European Union a counterfeit currency note or

coin  (Section  36(1)).  The  ECB  notes  that  the  offences  listed  in  the  draft  Bill  relating  to  the

making  (with  the  intention  of  passing  or  tendering  it  as  genuine  outside  the  EU),  passing  or

tendering  of  counterfeit  currency  or  of  having  custody  or  control  of  counterfeit  currency  or

things  to  be  used  for  making  counterfeit  currency  are  not  stated  to  be  punishable  offences

where committed outside the Irish State.

11.  Article 7(3) of the framework Decision provides that where more than one Member State has

jurisdiction and has the possibility of viable prosecution of an offence based on the same facts,

the Member States involved shall co-operate in deciding which Member State shall prosecute

the offender or offenders with a view to centralising the prosecution in a single Member State

where possible. The ECB notes that Ireland intends to implement such co-operation on the basis

of existing administrative procedures, and a text evidencing the transposition of this provision

into Irish law will therefore not be transmitted to the ECB.

12.  The  ECB  confirms  that  it  has  no  objection  to  this  ECB  opinion  being  made  public  by  the

competent national authorities at their discretion.

Done at Frankfurt am Main on 28 August 2000.

The President of the ECB

[signed]

Willem F. Duisenberg