2001/413/JHA: Council Framework Decision of 28 May 2001 combating fraud and counterfeiting of non-cash means of payment
Date: 2001-05-28
Institutions: Council of the European Union
Subjects: EU Member State, electronic money, fraud, information network, judicial cooperation in criminal matters in the EU, payment

2.6.2001

EN

Official Journal of the European Communities

L 149/1

(Acts adopted pursuant to Title VI of the Treaty on European Union)

COUNCIL FRAMEWORK DECISION

of 28 May 2001

combating fraud and counterfeiting of non-cash means of payment

(2001/413/JHA)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in partic-
ular Article 34(2)(b) thereof,

Having regard to the initiative of the Commission (1),

Having regard to the opinion of the European Parliament (2),

Whereas:

(1)

(2)

(3)

(4)

Fraud and counterfeiting of non-cash means of payment
often operate on an international scale.

The work developed by various international organ-
isations (i.e. the Council of Europe, the Group of Eight,
the OECD, Interpol and the UN) is important but needs
to be complemented by action of the European Union.

The Council considers that the seriousness and develop-
ment of certain forms of
fraud regarding non-cash
means of payment require comprehensive solutions.
Recommendation No 18 of the Action Plan to combat
organised crime (3), approved by the Amsterdam Euro-
pean Council on 16 and 17 June 1997, as well as point
46 of the Action Plan of the Council and the Commis-
sion on how to implement the provisions of the Treaty
of Amsterdam on an area of
freedom, security and
justice (4), approved by the Vienna European Council on
11 and 12 December 1998, call for an action on this
subject.

Since the objectives of this Framework Decision, namely
to ensure that fraud and counterfeiting involving all
forms of non-cash means of payment are recognised as
criminal offences and are subject to effective, propor-
tionate and dissuasive sanctions in all Member States
cannot be sufficiently achieved by the Member States in
view of the international dimension of those offences
and can therefore be better achieved at Union level, the
Union may adopt measures,
in accordance with the
principle of subsidiarity as set out in Article 5 of the
Treaty establishing the European Community. In accord-
ance with the principle of proportionality, as set out in

(5)

(6)

(7)

(8)

(9)

that Article,
this Framework Decision does not go
beyond what is necessary in order to achieve those
objectives.

in the fight
This Framework Decision should assist
fraud and counterfeiting involving non-cash
against
means of payment
together with other instruments
already agreed by the Council such as Joint Action 98/
428/JHA on the creation of a European Judicial
Network (5), Joint Action 98/733/JHA on making it a
criminal offence to participate in a criminal organisation
in the Member States of the European Union (6), Joint
Action 98/699/JHA on money laundering, the identifica-
tion,
seizing and confiscation of
instrumentalities and the proceeds from crime (7), as well
as the Decision of 29 April 1999 extending Europol's
mandate to deal with forgery of money and means of
payment (8).

freezing,

tracing,

The Commission submitted to the Council, on 1 July
1998, the Communication entitled ‘A framework for
action combating fraud and counterfeit of non-cash
means of payment’ which advocates a Union Policy
covering both preventive and repressive aspects of the
problem.

The Communication contains a Draft Joint Action which
is one element of that comprehensive approach, and
constitutes
this Framework
Decision.

starting point

the

for

It is necessary that a description of the different forms of
behaviour requiring criminalisation in relation to fraud
and counterfeiting of non-cash means of payment cover
the whole range of activities that together constitute the
menace of organised crime in this regard.

It is necessary that these forms of behaviour be classified
as criminal offences in all Member States, and that effec-
tive, proportionate and dissuasive sanctions be provided
for natural and legal persons having committed, or
being liable for, such offences.

(1) OJ C 376 E, 28.12.1999, p. 20.
(2) OJ C 121, 24.4.2001, p. 105.
(3) OJ C 251, 15.8.1997, p. 1.
(4) OJ C 19, 23.1.1999, p. 1.

(5) OJ L 191, 7.7.1998, p. 4.
(6) OJ L 351, 29.12.1998, p. 1.
(7) OJ L 333, 9.12.1998, p. 1.
(8) OJ C 149, 28.5.1999, p. 16.

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Official Journal of the European Communities

2.6.2001

(10)

By giving protection by penal law primarily to payment
instruments that are provided with a special form of
protection against imitation or abuse, the intention is to
encourage operators
to provide that protection to
payment instruments issued by them, and thereby to add
an element of prevention to the instrument.

(11)

It is necessary that Member States afford each other the
widest measure of mutual assistance, and that
they
consult each other when two or more Member States
have jurisdiction over the same offence,

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Definitions

For the purpose of this Framework Decision:

(a) ‘Payment instrument’ shall mean a corporeal

instrument,
other than legal tender (bank notes and coins), enabling, by
its specific nature, alone or in conjunction with another
(payment) instrument, the holder or user to transfer money
or monetary value, as for example credit cards, eurocheque
cards, other cards issued by financial institutions, travellers'
cheques, eurocheques, other cheques and bills of exchange,
which is protected against imitation or fraudulent use, for
example through design, coding or signature;

(b) ‘Legal person’ shall mean any entity having such status
under the applicable law, except for States or other public
bodies in the exercise of State authority and for public
international organisations.

Article 2

Offences related to payment instruments

the following conduct

Each Member State shall take the necessary measures to ensure
that
is a criminal offence when
committed intentionally, at least in respect of credit cards,
eurocheque cards, other cards issued by financial institutions,
travellers cheques, eurocheques, other cheques and bills of
exchange:

(a) theft or other unlawful appropriation of a payment instru-

ment;

(b) counterfeiting or falsification of a payment instrument in

order for it to be used fraudulently;

(c) receiving, obtaining,

to
transporting,
another person or possession of a stolen or otherwise
unlawfully appropriated, or of a counterfeited or falsified
payment instrument in order for it to be used fraudulently;

sale or

transfer

(d) fraudulent use of a stolen or otherwise unlawfully appro-
priated, or of a counterfeited or falsified payment instru-
ment;

Article 3

Offences related to computers

Each Member State shall take the necessary measures to ensure
that
is a criminal offence when
committed intentionally:

the following conduct

performing or causing a transfer of money or monetary value
and thereby causing an unauthorised loss of property for
another person, with the intention of procuring an unauthor-
ised economic benefit for the person committing the offence or
for a third party, by:

— without right introducing, altering, deleting or suppressing

computer data,

in particular identification data, or

— without

right

interfering with the

functioning of a

computer programme or system.

Article 4

Offences related to specifically adapted devices

Each Member State shall take the necessary measures to ensure
that the following conduct is established as a criminal offence
when committed intentionally:

the fraudulent making, receiving, obtaining, sale or transfer to
another person or possession of:

— instruments, articles, computer programmes and any other
means peculiarly adapted for the commission of any of the
offences described under Article 2(b);

— computer programmes

commission of any of
Article 3.

the purpose of which is

the
the offences described under

Article 5

Participation, instigation and attempt

Each Member State shall take the necessary measures to ensure
that participating in and instigating the conduct referred to in
Articles 2, 3 and 4, or attempting the conduct referred to in
Article 2(a), (b) and (d) and Article 3, are punishable.

Article 6

Penalties

Each Member State shall take the necessary measures to ensure
that the conduct referred to in Articles 2 to 5 is punishable by
effective, proportionate and dissuasive criminal penalties,
including, at least in serious cases, penalties involving depriva-
tion of liberty which can give rise to extradition.

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Official Journal of the European Communities

L 149/3

Article 7

Liability of legal persons

in Articles 2, 3, 4 and 5 where the offence has been
committed:

(a) in whole or in part within its territory; or

Each Member State shall take the necessary measures to
1.
ensure that legal persons can be held liable for conduct referred
to in Article 2(b), (c) and (d) and Articles 3 and 4 committed
for their benefit by any person, acting either individually or as
part of an organ of the legal person, who has a leading position
within the legal person, based on:

(b) by one of

its nationals, provided that the law of that
Member State may require the conduct to be punishable
also in the country where it occurred; or

(c) for the benefit of a legal person that has its head office in

the territory of that Member State.

— a power of representation of the legal person, or

— an authority to take decisions on behalf of the legal person,

or

— an authority to exercise control within the legal person,

as well as for involvement as accessories or instigators in the
commission of such an offence.

2.
Apart from the cases provided for in paragraph 1, each
Member State shall take the necessary measures to ensure that
a legal person can be held liable where the lack of supervision
or control by a person referred to in paragraph 1 has made
possible the commission referred to in Article 2(b), (c) and (d)
and Articles 3 and 4 for the benefit of that legal person by a
person under its authority.

3.
Liability of a legal person under paragraphs 1 and 2 shall
not exclude criminal proceedings against natural persons who
are perpetrators,
instigators or accessories in the conduct
referred to in Article 2(b), (c) and (d) and Articles 3 and 4.

Article 8

Sanctions for legal persons

1.
Each Member State shall take the necessary measures to
ensure that a legal person held liable pursuant to Article 7(1) is
punishable by effective, proportionate and dissuasive sanctions,
which shall
include criminal or non-criminal fines and may
include other sanctions such as:

(a) exclusion from entitlement to public benefits or aid;

(b) temporary or permanent disqualification from the practice

of commercial activities;

(c) placing under judicial supervision;

(d) a judicial winding-up order.

2.
Each Member State shall take the necessary measures to
ensure that a legal person held liable pursuant to Article 7(2) is
punishable by effective, proportionate and dissuasive sanctions
or measures.

Article 9

Jurisdiction

1.
Each Member State shall take the necessary measures to
establish its jurisdiction with regard to the offences referred to

2.
Subject to of Article 10, any Member State may decide
that it will not apply, or that it will apply only in specific cases
or circumstances, the jurisdiction rule set out in:

— paragraph 1(b);

— paragraph 1(c).

3. Member States shall inform the General Secretariat of the
Council accordingly where they decide to apply paragraph 2,
where appropriate with an indication of the specific cases or
circumstances in which the decision applies.

Article 10

Extradition and prosecution

1. (a) Any Member State which, under its law, does not extra-
dite its own nationals shall take the necessary measures
to establish its jurisdiction over the offences provided
for in Articles 2, 3, 4 and 5 when committed by its own
nationals outside its territory.

(b) Each Member State shall, when one of its nationals is
alleged to have committed, in another Member State, an
offence involving the conduct described in Articles 2, 3,
4 or 5, and it does not extradite that person to that
other Member State solely on the ground of his nation-
ality, submit the case to its competent authorities for the
In order to
purpose of prosecution if appropriate.
enable prosecution to take place, the files, information
and exhibits relating to the offence shall be forwarded in
accordance with the procedures laid down in Article
6(2) of the European Convention on Extradition of 13
December 1957. The requesting Member State shall be
informed of
its
outcome.

the prosecution initiated and of

For the purpose of this Article, a ‘national’ of a Member
2.
State shall be construed in accordance with any declaration
made by that State under Article 6(1)(b) and (c) of the Euro-
pean Convention on Extradition.

Article 11

Cooperation between Member States

1.
In accordance with the applicable conventions, multilat-
eral or bilateral agreements or arrangements, Member States
shall afford each other the widest measure of mutual assistance
in respect of proceedings relating to the offences provided for
in this Framework Decision.

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2. Where several Member States have jurisdiction in respect
of offences envisaged by this Framework Decision, they shall
consult one another with a view to coordinating their action in
order to prosecute effectively.

Article 12

Exchange of information

1. Member States shall designate operational contact points
or may use existing operational structures for the exchange of
information and for other contacts between Member States for
the purposes of applying this Framework Decision.

2.
Each Member State shall inform the General Secretariat of
the Council and the Commission of its department or depart-
ments acting as contact points in accordance with paragraph 1.
The General Secretariat shall notify the other Member States of
these contact points.

Article 13

Territorial application

imposed upon them under

By 2 June 2003, Member States shall forward to the
2.
General Secretariat of the Council and to the Commission the
text of the provisions transposing into their national law the
obligations
Framework
Decision. The Council shall, by 2 September 2003, on the basis
of a report established 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.

this

Article 15

Entry into force

This Framework Decision shall enter into force on the date of
its publication in the Official Journal of the European Communities.

This Framework Decision shall apply to Gibraltar.

Done at Brussels, 28 May 2001.

Article 14

Implementation

1. Member States shall bring into force the measures neces-
sary to comply with this Framework Decision by 2 June 2003.

For the Council

The President

T. BODSTRÖM