Report from the Commission based on Article 14 of the Council Framework Decision of 28 May 2001 combating fraud and counterfeiting of non-cash means of payment {SEC(2004) 532}
Date: 2004-04-30
Institutions: European Commission
Subjects: EU Member State, electronic money, fraud, information network, judicial cooperation in criminal matters in the EU, payment, report

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 30.4.2004 
COM(2004) 346 final 

REPORT FROM THE COMMISSION 

based on Article 14 of the Council Framework Decision of 28 May 2001 combating fraud 
and counterfeiting of non-cash means of payment 

{SEC(2004) 532} 

. 

EN 

   EN 

 
 
 
  
TABLE OF CONTENTS 

1. 

Introduction .................................................................................................................. 3 

1.1. 

Introduction .................................................................................................................. 3 

1.1.1.  Combating fraud and counterfeiting of non-cash means of payment .......................... 3 

1.1.2.  The obligation to present an evaluation report............................................................. 3 

1.2. 

Method of and criteria for evaluation of the Framework Decision.............................. 3 

1.2.1.  Framework decisions under Article 34(2)(b) TEU and Directives under Article 249 

EC Treaty ..................................................................................................................... 3 

1.2.2.  Evaluation Criteria ....................................................................................................... 5 

1.2.3.  Context of evaluation ................................................................................................... 5 

1.3. 

Purpose of the report .................................................................................................... 6 

2. 

2.1. 

2.2. 

National measures taken to comply with the Framework Decision............................. 6 

Impact of the Framework Decision.............................................................................. 6 

Key provisions of the Framework Decision ................................................................ 9 

2.2.1.  State of play concerning the implementation of the Framework Decision: Table 1.... 9 

2.2.2.  Offences related to payment instruments (article 2): Table 2 .................................... 10 

2.2.3.  Offences related to computers (Article 3): Table 3.................................................... 12 

2.2.4.  Offences related to specifically adapted devices (Article 4): Table 3 ....................... 12 

2.2.5.  Penalties (Article 6): Table 4 ..................................................................................... 13 

2.2.6. 

Jurisdiction (Article 9): Table 5 ................................................................................. 15 

2.2.7.  Liability of and sanctions for legal persons (Articles 7 and 8): Table 6 .................... 16 

3. 

3.1. 

3.2. 

Conclusions ................................................................................................................ 17 

General ....................................................................................................................... 17 

Specific....................................................................................................................... 18 

Annex I .................................................................................................................................... 21 

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1. 

INTRODUCTION 

1.1. 

Introduction 

1.1.1.  Combating fraud and counterfeiting of non-cash means of payment 

In order to achieve an equivalent and increased protection by criminal law against the 
fraud  and  counterfeiting  of  non-cash  means  of  payment  throughout  the  Union,  the 
Council adopted the Framework Decision of 28 May 2001. 

Under Article 14 of the Council’s Framework Decision of 28 May 20011 combating 
fraud  and  counterfeiting  of  non-cash  means  of  payment,  the  Commission  has  to 
establish  a  written  report  on  the  measures  taken  by  the  Member  States  to  comply 
with this Framework Decision. 

1.1.2.  The obligation to present an evaluation report 

Article 14 of the Framework Decision of 28 May 2001 obliges the Member States to 
take the necessary measures to comply with its provisions no later than 2 June 2003. 
By  the  same  date,  the  Member  States  should  have  transmitted  to  the  General 
Secretariat  of  the  Council  and  to  the  Commission  the  text  of  the  provisions 
transposing  into  their  national  law  the  obligations  imposed  on  them  under  the 
Framework  Decision.  The  Council  should  have,  by  2  September  2003  at  the  latest, 
on the basis of a report established using this information and a written report by the 
Commission,  assessed  the  extent  to  which  the  Member  States  have  taken  the 
necessary measures in order to comply with the Framework Decision. 

By  2  June  2003,  however,  no  Member  State  had  notified  the  Commission  of  the 
measures  taken  to  implement  the  Framework  Decision.  A  written  report  in  those 
circumstances  would  have  been  of  very  little  meaning.  The  Commission  has 
therefore  considered  it  more  appropriate  to  delay  preparation  of  the  report  until 
(almost) all contributions were received (Table 1 shows the date of availability of the 
different contributions from the Member States). 

The  reports  under  Article  14  of  the  Framework  Decision  are  the  main  sources  of 
information available to the Commission. The value of this report therefore depends 
therefore largely on the quality and accuracy of the national information received by 
the Commission.  

1.2.  Method of and criteria for evaluation of the Framework Decision 

1.2.1.  Framework decisions under Article 34(2)(b) TEU and Directives under Article 249 

EC Treaty 

The Framework Decision is based on the Treaty of the European Union (TEU), and 
in particular Article 31(e) and Article 34(2)(b) thereof. 

1 

OJ L 149, 2.6.2001, p. 1.  

3 

 
 
  
 
                                                 
According to Article 34: “Framework decisions shall be binding upon the Member 
States as to the result to be achieved but shall leave to the national authorities the 
choice of form and methods”. 

This  Framework  Decision  can  best  be  compared  with  a  directive2.  Both  legal 
instruments are binding upon the Member States as to the result to be achieved but 
leave  to  the  national  authorities  the  choice  of  form  and  methods.  However, 
Framework Decisions do not entail direct effect. Many directives contain a provision 
obliging the Member States to submit reports on the implementation of the directive 
together with an obligation on the Commission to draw up a ‘consolidated’ report on 
the  implementation  of  the  directive3.  On  the  basis  of  such  reports  the  Institutions, 
particularly the Council and the European Parliament, can assess the extent to which 
the  Member  States  have  implemented  the  provisions  of  the  directive  in  order  to 
monitor the progress made in a specific area of Community interest. Harmonisation 
directives, in particular, are evaluated by the Commission as to the extent to which 
Member States have fulfilled their obligations. Such an evaluation might eventually 
lead to a Commission decision to start an infringement procedure against a Member 
State which did not sufficiently fulfil its obligations4.  

The  general  purpose  of  this  Framework  Decision  is  to  achieve  and  ensure  an 
equivalent level of criminal law protection in the European Union of non-cash means 
of payment against fraud and counterfeiting by measures to be taken by the Member 
States,  such  as  defining  specific  punishable  conduct5  and  providing  effective, 
proportionate  and  dissuasive  criminal  penalties6.  Each  Member  State  shall  take  the 
necessary measures to establish its jurisdiction with regard to the offences referred to 
in  Articles  2,  3,  4,  57.  It  can  be  concluded  that  this  Framework  Decision  covers 
different  subjects  concerning  national  substantive  criminal  law  and  matters  such  as 
national jurisdiction. 

On the basis of this Framework Decision Member States are particularly obliged to 
bring  their  national  definitions  of  specific  offences  of  fraud  and  counterfeiting  of 
non-cash  means  of  payment  in  line  with  Articles  2,  3  and  4  of  the  Framework 
Decision.  Furthermore  Member  States  are  obliged  to  ensure  the  provision  of 
effective,  proportionate  and  dissuasive  criminal  penalties  in  order  to  achieve  an 
equivalent  level  of  deterrence.  The  Framework  Decision  obliges  Member  States  to 
take  the  necessary  measures,  in  particular,  to  meet  the  degree  of  approximation  of 
national  substantive  criminal  law  provisions  as  provided  for  by  this  instrument  in 
order to achieve an equivalent and increased protection by criminal law against fraud 
and counterfeiting of non-cash means of payment throughout the Union. Under the 
present  Treaties,  the  Commission  has  no  power  to  bring  a  legal  action  before  the 
Court of Justice to enforce transposition legislation for the Framework Decision.  

2 
3 

4 
5 
6 
7 

Article 249 EC Treaty. 
See  for  example  the  report  of  the  Commission  to  the  Council  and  the  European  Parliament  on  the 
implementation  of  Community  Waste  legislation :  Directive  75/422/EEC  on  waste,  Directive 
91/689/EEC  on  hazardous  waste,  Directive  75/439/EEC  on  waste  oils  and  Directive  86/278/EEC  on 
sewage sludge for the period 1995-1997 (COM(1999) 752 final). 
Article 226 EC Treaty. 
See Article 2, 3 and 4. 
See Article 6. 
See Article 9. 

4 

 
 
  
 
                                                 
In  general  a  Framework  Decision  is  the  instrument  ‘par  excellence’  to  bring  the 
definitions of specific offences of counterfeiting more closely in line with each other, 
since its purpose is the approximation of laws and regulations of the Member States8. 

1.2.2.  Evaluation Criteria  

To  be  able  to  evaluate  on  the  basis  of  objective  criteria  whether  a  Framework 
Decision  has  been  fully  implemented  by  a  Member  State,  some  general  criteria, 
initially developed with respect to directives, should be applied mutatis mutandis to 
Framework Decisions, such as: 

1. 

2. 

3. 

the form and methods of implementation of the result to be achieved must be 
chosen in a manner which ensures that the directive functions effectively with 
account being taken of its aims9; 

each  Member  State  is  obliged  to  implement  directives  in  a  manner  which 
satisfies the requirements of clarity and legal certainty and thus to transpose the 
provisions of the directive into national provisions having binding force10, 

transposition  need  not  necessarily  require  enactment  in  precisely  the  same 
words  in  an  express  legal  provision;  thus  a  general  legal  context  (such  as 
appropriate  pre-existing  measures)  may  be  sufficient,  as  long  as  the  full 
application  of  the  directive  is  assured  in  a  sufficiently  clear  and  precise 
manner11; 

4. 

directives must be implemented within the period prescribed therein12. 

Both instruments are binding ‘as to the results to be achieved’. That may be defined 
as a legal or factual situation which does justice to the interest which in accordance 
with the Treaty the instrument is to ensure13. 

The  general  assessment  provided  in  Chapter  2  of  the  extent  to  which  the  Member 
States have complied with the Framework Decision is, where possible, based on the 
criteria mentioned above.  

1.2.3.  Context of evaluation 

A preliminary observation concerns the legal context and follow-up of the evaluation 
report.  As  already  mentioned,  within  the  first  pillar  the  Commission  has  the 
possibility  to  start  an  infringement  procedure  against  a  Member  State.  Since  this 
possibility does not exist within the TEU, the nature and purpose of this report differ, 

8 
9 
10 

11 

12 

13 

Article 34 (2) (b) TEU. 
See relevant case law on the implementation of directives: Case 48/75 Royer [1976 ECR 497 at 518]. 
See relevant case law on the implementation of directives: Case 239/85 Commission v. Belgium [1986] 
ECR 3645 at 3659. See also Case 300/81 Commission v. Italy [1983] ECR 449 at 456. 
See  relevant  case  law  on  the  implementation  of  directives  for  instance  Case  29/84  Commission  v. 
Germany [1985] ECR 1661 at 1673. 
See substantial case law on the implementation of directives, for example : Case 52/75 Commission v. 
Italy  [1976]  ECR  277  at  284,  See,  generally,  the  Commission  annual  reports  on  monitoring  the 
application of Community law, for instance COM (2001) 309 final.  
See  PJG  Kapteyn  and  P.  Verloren  van  Themaat  ‘Introduction  to  the  Law  of  the  European 
Communities’, third edition, 1998, p. 328. 

5 

 
 
  
 
                                                 
of course, from a report on the implementation of a first pillar directive by Member 
States. Nevertheless, as the Commission fully participates in third pillar matters14, it 
is  consistent  to  confer  on  it  the  task  of  factual  evaluation  of  the  implementation 
measures  enabling  the  Council  to  assess  the  extent  to  which  Member  States  have 
taken the necessary measures in order to comply with the Framework Decision.  

1.3. 

Purpose of the report 

The  report  should  first  of  all  enable  the  Council  to  assess  the  extent  to  which  the 
Member  States  have  taken  the  necessary  measures  to  comply  with  the  Framework 
Decision.  It  should  also  enable  the  other  Institutions,  especially  the  European 
Parliament  to  assess  the  level  of  protection  by  criminal  law  of  non-cash  means  of 
payment on the basis of the measures taken by Member States. 

With  reference  to  the  above-mentioned  preliminary  observations,  the  report  has  a 
fact-finding  character  concentrating  on  the  cardinal  provisions  of  the  Framework 
Decision  and  providing  the  information  needed  to  assess  the  progress  to  date. 
Although  the  Commission  has  no  power  to  bring  legal  action  before  the  Court  of 
Justice  to  enforce  transposition  legislation  for  a  Framework  Decision,  there  is  a 
possibility  for  Member  States  to  refer  to  the  Court  an  allegedly  incorrect 
interpretation  or  application  (i.e.  also  transposition)  of  the  Framework  Decision  by 
another Member State15. The exercise of this legal possibility requires a solid factual 
basis, to which this report may contribute. 

2. 

NATIONAL MEASURES TAKEN TO COMPLY WITH THE FRAMEWORK DECISION 

2.1. 

Impact of the Framework Decision 

The  purpose  of  the  Framework  Decision  is  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, proportionate and dissuasive sanctions in some 
Member States. 

On  the  basis  of  the  Framework  Decision  Member  States  should  provide  for  the 
following  main  categories  of  measures  aimed  at  increasing  protection  through 
criminal law of non-cash means of payment.  

(1) 

(2) 

Article  1  contains  core  definitions  for  the  Framework  Decision.  Point  (a) 
defines (non-cash) “payment instruments” including all payment instruments 
with the exception of bank notes and coins. The definition of “legal person” 
repeats that used in the Second Protocol to the Convention on the protection 
of the European Communities’ financial interests 16. 

Article  2  describes  the  different  types  of  behaviour  which,  according  to  the 
provisions of the Framework Decision, should be criminalised in all Member 
States as “offences related to payment instruments”. Each Member State shall 
take the necessary measures to ensure that the described forms of conduct are 

14 
15 
16 

Article 36 (2) Treaty on European Union. 
Article 35 (7) TEU. 
OJ C 221, 19.7.1997, p. 11. 

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criminal offences at least in respect of the examples of payment instruments 
listed in Article 1 of the Framework Decision. The word “intentionally” in the 
opening  paragraph,  makes  this  qualification  applicable  to  all  subsequent 
points  of  the  article.  Point  (a)  typically  corresponds  to  the  theft  of  cheques, 
credit  cards  or  other  cards.  Point  (b)  covers,  e.g.  the  creation  of  completely 
false  cards,  as  well  as  the  altering  of  existing  ones  in  order  for  them  to  be 
used 
receiving,  selling, 
(c)  corresponds 
transmission,  etc.,  of  payment  instruments,  false  or  falsified,  as  well  as  of 
genuine  instruments  stolen  or  otherwise  unlawfully  appropriated  in  order  to 
be used fraudulently. Point (d) covers the actual use of a payment instrument 
falling under (a) or (b). 

fraudulently.  Point 

the 

to 

(3) 

(4) 

(5) 

Article 3 covers acts that are typically committed in a cyber-environment, and 
is  intended  to  cover  the  same  scope  as  that  described  by  the  Council  of 
Europe Recommendation No R (89) 9 on computer-related crime (pages 37-
38; guidelines for national legislatures). Such acts are criminal offences when 
committed intentionally 

Article  4  provides  for  offences,  committed  intentionally,  relating  to 
“specifically  adapted  devices”  for  preparing  or  giving  effect  to  one  of  the 
criminal behaviours described before. 

The Framework Decision also extends the scope of the offences provided for 
in Articles 2, 3 and 4: “individual criminal liability” and “criminal attempts”. 
Article  5  applies  to  the  accessory  forms  of  criminal  behaviour  extending 
incrimination  to  anyone  who  would  assist  in,  or  instigate,  any  of  the  acts 
previously  described.  Member  States  are  required  to  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. 

(6)  Member States should impose for all criminal activities covered by Articles 2 
to  5  of  the  Framework  Decision  effective,  proportionate  and  dissuasive 
criminal  penalties,  including  custodial  sentences  which  may  lead  to 
extradition, in the most serious cases (Article 6). In so far as natural persons 
are  concerned,  the  provisions  are  modelled  on  provisions  contained  in  the 
Convention  on  the  protection  of  the  European  Communities’  financial 
interests17, the second Protocol to that Convention and the Convention on the 
fight  against  corruption  involving  officials  of  the  European  Communities  or 
officials  of  the  Member  States  of  the  EU18.  In  complying  with  this  ruling, 
Member States have some discretion in determining the nature and severity of 
the penalties which may be provided for. These need not always necessarily 
involve deprivation of liberty. Fines may be imposed in addition to or as an 
alternative to imprisonment. It is up to Member States to decide what criteria 
determine  the  seriousness  of  an  offence in  the  light  of  their  respective  legal 
traditions. 

17 
18 

OJ C 316, 27.11.1995. 
OJ C 195, 25.6.1997. 

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(7)  Member  States  are  required  to  take  those  measures  necessary  to  ensure  that 
legal persons can be held liable for the offences referred to in Articles 2 to 5 
of the Framework Decision, with the exception of the offence referred to in 
Article  2(a),  committed  for  their  benefit  by  persons  who  have  a  leading 
position within the legal person; as well as for involvement as accessories or 
instigators  in  such  offences  or  the  attempted  commission  of  the  offences 
referred to in Article 7(1).  

(8)  Member States should also ensure that the legal persons held liable pursuant 
to  Article  7  are  punishable  by  effective,  proportionate  and  dissuasive 
sanctions  (Article  8).  This  Article  is  modelled  on  Article  4  of  the  Second 
Protocol to the Convention on the protection of the European Communities’ 
financial  interests19.  As  far  as  legal  persons  are  concerned,  in  some 
jurisdictions the concept of criminal liability of legal persons does not exist. 
Therefore Article 8 does not impose that the sanctions, which can be fines or 
other measures such as those enumerated in Article 8, be of criminal nature. 

(9) 

The international nature of fraud of non-cash means of payment means that to 
combat it effectively, rules on jurisdiction and on extradition need to be clear 
to  prevent  requested  persons  from  escaping  prosecution.  For  that  reason  the 
provisions of Article 9 are modelled on various provisions used for different 
forms  of  crimes  with  particular  international  dimensions.  The  models  used 
are  the  jurisdiction  provisions  of  the  Convention  on  the  protection  of  the 
European  Communities’  financial  interests,  the  second  Protocol  to  that 
Convention  and  the  Convention  on  the  fight  against  Corruption  involving 
officials  of  the  Communities  or  officials  of  Member  States  of  the  European 
Union.  Paragraph  1  establishes  a  series  of  criteria  conferring  jurisdiction  to 
prosecute  cases  involving  the  offences  covered  by  the  Framework  Decision 
on  national  enforcement  and  judicial  authorities.  A  Member  State  shall 
establish its jurisdiction in three situations: 

(a) 

(b) 

(c) 

when  the  offence  is  committed  in  whole  or  in  part  of  its  territory, 
irrespective  of  the  status  or  nationality  of  the  person  involved 
(territoriality principle); 

when  the  offender  is  a  national  (active  personality  principle).  The 
criteria  of  their  status  means  that  jurisdiction  can  be  established 
regardless of the lex locus delicti 

when the offence has been committed for the benefit of a legal person 
whose head office is based in the territory of that Member State. 

However,  as  not  all  Member  States’  legal  traditions  recognise  extraterritorial 
jurisdiction,  Member  States  may  limit  their  jurisdiction  to  the  first  of  these  three 
situations. In addition, if they do not do so they can still make the jurisdiction rule in 
the second and third situation subject to specific situations or conditions. 

19 

On June 1997, a second protocol to the Protocol to the Convention on the Protection of the European 
Communities'  Financial  Interests  (PIF  Convention),  adopted  on  27  September  1996,  was  adopted, 
which has provisions for criminalisation of money laundering of proceeds generated by corruption and 
introduced  liability  to  legal  persons  in  cases  of  fraud,  active  corruption  and  money  laundering,  and 
empowering the possibility of confiscation.  

8 

 
 
  
 
                                                 
Article  10  takes  into  account  the  fact  that  some  Member  States,  at  the  time  of  the 
adoption  of  the  Framework  Decision,  did  not  extradite  their  nationals  and  seeks  to 
ensure  that  persons  suspected  of  having  committed  fraud  of  non-cash  means  of 
payment  do  not  evade  prosecution  because  extradition  is  refused  on  nationality 
grounds. 

In this context it can be noted that the Council Framework Decision of 13 June 2002 
on  the  European  arrest  warrant  and  the  surrender  procedures  between  Member 
States20,  adopted  after 
the  Framework  Decision  on  combating  fraud  and 
counterfeiting  of  non-cash  means  of  payment,  does  not  allow  that  nationality  be  a 
ground for refusal with the temporary exception of Austria.  

(10)  The purpose of Article 11 is to foster co-operation and mutual legal assistance 
between  EU  Member  States  in  order  to  combat  fraud  and  counterfeiting  of 
non-cash  means  of  payment.  The  Member  States  have  not  provided 
information on the application of current arrangements or agreements in this 
field. 

2.2. 

Key provisions of the Framework Decision  

2.2.1. 

State of play concerning the implementation of the Framework Decision: Table 1. 

Table 1 

The report is based on the information communicated to the Commission, completed 
where necessary and possible by further exchanges with the national contact points. 
Information  from  the  Member  States  varied  considerably  especially  as  far  as  the 
degree  of  completeness  is  concerned.  Some  Member  States  sent  full  national 
legislation  without  giving  explanations,  leaving  the  Commission  to  find  out  how 
national  provisions  met  with  the  requirements  of  the  Framework  Decision;  other 
Member States gave more details on the background and schedule of entry into force. 

Austria, Belgium, Greece, Luxembourg replied to the Commission without sending 
legislation.  Austria  informed  the  Commission  that  the  legislation  process  was 
expected  to  be  completed  by  the  end  of  2003.  Belgium  considered  that  Belgian 
legislation does not require transposition measures because it is already in line with 
the  Framework  Decision;  but  did  not  send  the  Commission  the  relevant  existing 
legislative  texts.  Greece  informed  the  Commission  that  a  special  legal  preparatory 
committee  was  expected  to  hand  over  its  work  in  the  middle  of  July  2003. 
Luxembourg declared that the draft bill should be ready by October 2003. Denmark 
and Portugal did not reply to the Commission. 

Nine  Member  States  (Finland,  France,  Germany,  Ireland,  Italy,  the  Netherlands, 
Spain,  Sweden,  the  United  Kingdom)  have  communicated  to  the  Commission  the 
text of the provisions transposing into their national law the obligations imposed on 
them  under  the  Framework  Decision.  Finland  communicated  a  note  on  the  legal 
amendments which entered into force on 1 July 2003 to meet the obligations of the 
Framework Decision, together with extracts from its relevant legislation. France sent 
to the Commission a note describing new national legislation put in place specifically 

20 

OJ L 190, 18.7.2002, p. 1. 

9 

 
 
  
 
                                                 
to  comply  with  Articles  2  to  12  of  the  Framework  Decision  plus  extracts  of  the 
criminal Code for the various offences. This legislation is already in force. Germany 
sent  the  full  text  of  the  provisions  transposing  the  obligations  arising  from  the 
Framework Decision together with a short analysis of national provisions. Italy sent a 
short implementation table on Articles 2, 3, 4 and 7 together with extracts from the 
criminal  code.  Ireland  sent  to  the  Commission  an  implementation  table  detailing 
specific provisions in Irish legislation pertaining to the Articles 2, 3, 4, 5, 6, 7 and 8 
of  the  Framework  Decision.  The  Netherlands  sent  to  the  Commission  the  relevant 
amendments to the Criminal Code in connection with the combat against fraud and 
counterfeiting in connection with non-cash means of payment, plus a table of Dutch 
provisions pertaining to Articles 2 to 9 of the Framework Decision. This legislation 
is not yet in force. Spain sent a full report on its national legislation pertaining to all 
the Articles in the Framework Decision that need be transposed, and on the process 
of  preparing  new  measures  to  comply  with  articles  2  to  7.  Sweden  sent  to  the 
Commission several extensive chapters of its criminal legislation (chapter 8 on theft, 
robbery  and  other  crimes  of  stealing,  chapter  9  on  fraud  and  other  dishonesty  etc.) 
with no further explanation. The United Kingdom sent extensive legislation. 

To the extent possible, however, this draft legislation has been taken into account in 
paragraphs 2.2.2 – 2.2.6.  

Particularly  in  the  field  of  the  implementation  of  Article  7  on  the  involvement  of 
legal persons as perpetrators, accessories or instigators in the offences referred to in 
Articles 2 to 4 or the attempted commission of the offences referred to in Article 2 
(a),  (b)  and  (d)  and  3,  and  the  corresponding  sanctions  referred  to  in  Article  8,  the 
Commission has not received the relevant information.  

Furthermore not all Member States have transmitted to the Commission the relevant 
text  of  the  national  provisions  transposing  the  Framework  Decision:  Belgium  has 
replied there was nothing new to be done, as general provisions existed already, but 
did  not  transmit  the  relevant  existing  texts  to  the  Commission.  Germany,  Ireland, 
Italy,  Sweden,  and  the  UK  also  did  not  see  the  need  to  initiate  new  legislation 
specially  designed  to  comply  with  the  Framework  Decision,  but  did  send  the 
Commission information on the relevant existing legislation.  

2.2.2.  Offences related to payment instruments (article 2): Table 2 

Whereas  Article  1  of  the  Framework  Decision  provides  definitions  of  payment 
instruments  and  legal  persons,  Article  2  states  that  the  minimum  obligation  to 
incriminate  the  behaviour  described  applies  in  relation  to  certain  types  of  payment 
instruments.  Article  2  describes  in  precise  and  clear  language  the  conduct  which 
should be made punishable according to national legislation.  

Member  States  use  broad  notions  or  definitions  such  as  theft,  robbery,  or  any 
misappropriation to cover Article 2 (a); Member States use counterfeiting, falsifying, 
and  altering,  in  order  to  cover  the  counterfeiting  or  falsification  of  the  payment 
instruments as per Article 2 (b). Most Member States limit the incrimination of fraud 
to the payment instruments listed as examples in Article 1. Italy is the only country 
that  has  added  in  its  national  legislation  incrimination  of  fraud  against  payment 
orders,  a  form  of  payment  instrument  not  mentioned  in  the  list.  France,  Germany, 
Italy,  Sweden  and  the  United  Kingdom  make  a  specific  distinction  between 
counterfeiting,  on  the  one  hand,  and  altering,  on  the  other  hand  in  their  national 

10 

 
 
  
 
provisions.  Spanish  criminal  legislation  does  not  provide  for  punishment  of 
fraudulent altering of payment instruments, but only for counterfeiting.  

Five  Member  States  (France,  Germany,  Italy,  Sweden  and  the  United  Kingdom) 
explicitly  criminalise  the  conduct  of  receiving,  obtaining,  transporting,  sale  or 
transfer of payment instruments to another person or possession as defined in Article 
2(c) of the Framework Decision. 

(sections  151(5),  146(1)(2),  152a(1)(2)  of 

Obtaining,  procurement,  selling  or  transferring  to  another  person  of  counterfeit  or 
falsified  or  stolen  or  otherwise  unlawfully  obtained  instruments  of  payment  are 
already  covered  under  German  criminal  law  and  the  transport  and  possession  are 
covered by general provisions. The instrument may have been obtained as the result 
of  a  criminal  offence  in  which  case  the  perpetrator  can  be  prosecuted  for 
procurement 
the  penal  code), 
counterfeiting (sections 151(5), 146(1)(1), 152a(1)(1), 267(1), 269(1) and 270 of the 
criminal code), theft or misappropriation (sections 242 and 246 of the criminal code), 
receiving  stolen  property  (section  259  of  the  criminal  code)  or  money  laundering 
(section 261 of the criminal code). Alternatively, the perpetrator may seek to use the 
payment  instrument,  in  which  case  he  can  be  prosecuted  under  section  263  of  the 
criminal  code,  while  attempts  to  bring  instruments  of  payment  into  circulation  are 
punishable under section 147 of the code. Where the perpetrator claims that a third 
party  committed  or  intended  to  commit  the  principal  offence,  he  or  she  may  be 
prosecuted as a co-perpetrator (under section 25(2) of the criminal code) or for aiding 
and abetting (under section 27(1)). Furthermore, certain cases involving the transport 
or  possession  of  counterfeit  or  falsified  eurocheques,  credit  cards  and  eurocheques 
cards  are  covered  by  the  offence  of  offering  for  sale  (section  152a(1)(2)  of  the 
criminal  code).  According  to  the  case  law,  this  includes  making  the  item  clearly 
available  for  sale.  In  some  cases,  the  legal  qualification  of  the  offence  can  be 
changed during the course of the trial.  

Germany qualified the conduct of transport as assistance to the conduct referred to in 
Article  2(c)  of  the  Framework  Decision  which  has  consequences  for  the  level  of 
penalties which can be imposed. Other Member States transpose Article 2(c) of the 
Framework Decision in more general terms or already have existing penal legislation 
in  force  which  defines  the  relevant  punishable  conduct  in  more  general  terms  (for 
example:  Spain).  Sweden  qualified  this  conduct  as  assisting  in  the  removal,  or 
transfer. 

France,  Italy,  Ireland,  Sweden  and  the  United  Kingdom  consider  specifically 
qualified  possession,  for  fraudulent  purposes,  of  a  stolen  or  a  falsified  payment 
instrument as a criminal activity. Most Member States21 make an explicit distinction 
between ‘obtaining’ and ‘possession’. France, Ireland and the United Kingdom have 
introduced  a  broad  notion  covering  ‘obtaining’  and  ‘possession’.  Spain  does  not 
specifically consider ‘possession’ as a criminal activity referred to in Article 2(c). 

Most  Member  States  have  also  made  punishable  the  fraudulent  use  of  counterfeit 
non-cash  means  of  payment,  sometimes  in  a  broader  context  than that described in 
Article  2(d).  Fraudulent  use,  i.e.  use  intended  to  injure  by  deception  is,  in  some 

21 

The Netherlands shall insert this (both obtaining and possessing) in their legislation (Art 226 § 2), for 
the moment this is a proposal. 

11 

 
 
  
 
                                                 
Member  States,  generally  punishable  under  legal  provisions  covering  fraud  in 
general  and  the  related  additional  provisions:  in  France  (escroquerie),  in  Spain 
(estafa),  in  Germany  (betrug)  in  Italy  (truffa).  Italy  also  has  a  specific  Article 
regarding  fraudulent  use  of  credit  cards.  Finland  has  criminal  legislation  providing 
for a broad concept of fraudulent use of counterfeit payment instruments22. 

The  fraudulent  use  provided  in  Article  2(d)  is  not  covered  by  provisions  in  the 
Swedish penal code. 

Some Member States consider that on the basis of generally worded provisions or the 
use  of  general  definitions,  terms  or  concepts  their  legislation  complies  with  the 
Framework Decision. One of the evaluation criteria mentioned above indicates that a 
general  legal  context  (such  as  appropriate  measures  already  in  existence)  may  be 
sufficient, as long as the full application of the instrument is assured in a sufficiently 
clear and precise manner. For the sake of clarity and accuracy Member States who 
explicitly  introduced  in  their  criminal  Code  the  conduct  that  should  be  made 
punishable  according  to  Article  2  have  beyond  any  doubt  complied  in  this  respect 
with the Framework Decision.  

Article  2  has  been  or  will  very  soon  be  transposed  by  the  majority  of  the  Member 
States in their national criminal legislation, as Table 2 demonstrates.  

2.2.3.  Offences related to computers (Article 3): Table 3 

France,  Finland,  Germany,  Ireland,  Italy,  Spain  and  the  United  Kingdom  have 
indicated  that  their  respective  criminal  legislations  ensure  that  offences  related  to 
computers, as referred to in Article 3, can be punished. Member States comply with 
this article either by amending their criminal legislation to that end (such as France, 
Finland and Ireland) or by a broad concept of the definition of fraud (such as Spain 
and  Germany),  including  the  illicit  interfering  with  the  functioning  of  a  computer 
programme  or  system  or  the  introducing,  altering,  deleting  or  suppressing  of 
computer data. Swedish criminal legislation does not provide for a specific provision 
making punishable the conduct referred to in Article 3. 

2.2.4.  Offences related to specifically adapted devices (Article 4): Table 3 

French,  Finnish,  German,  Italian,  Spanish  and  the  United  Kingdom's  criminal 
legislation covers all the offences referred to in Article 4. Some Member States, e.g. 
Ireland,  have  introduced  more  general  concepts,  while  others  (e.g.  Spain)  use  very 
broad and general wording in their legislation to comply with this article. 

In particular, some other Member States (Finland, France, Italy) have introduced in 
their  national  legislation  specific  references  to  computer  programs  designed  for  the 

22 

The act is punishable on the basis of Chapter 37, section 8(1)(1) of the penal code. The commentary to 
the Code states that in application of the provision, it makes no difference in principle how the means of 
payment  has  come  into  the  possession  of  the  user.  The  important  thing  is  the  use  of  the  means  of 
payment  without  the  permission  of  its  lawful  possessor,  or  otherwise  lawful  right,  in  cases  where  no 
lawful  possessor  may  even  exists.  This  will  be  the  situation  for  example  if  the  means  of  payment  is 
counterfeit. The provision applies therefore to the use of both a stolen and a counterfeited or falsified 
means of payment. 

12 

 
 
  
 
                                                 
commission of any of the offences described under Article 2(b) in order to comply 
with Article 4. 

France has amended its Penal Code to comply with Article 4. Germany and Spain23 
appear  to  have  current  legislation  which  meets  the  requirements  of  Article  4.  The 
Netherlands will comply with this provision after its draft legislation has entered into 
force. Irish and Swedish national legislation have no specific provisions in order to 
comply with Article 4. 

2.2.5.  Penalties (Article 6): Table 4 

Most Member States have succeeded24 in meeting the obligation imposed by Article 
6  that  the  conduct  referred  to  in  Articles  2  to  4  shall  be  punishable  by  effective, 
proportionate  and  dissuasive  criminal  penalties,  including,  at  least  in  serious  cases, 
penalties involving deprivation of liberty which can give rise to extradition.  

The  majority  of  Member  States  (except  Spain  which  has  not  made  the  altering  of 
payment instruments punishable) have, as regards Articles 2, 3 and 4, provided for a 
punishment by terms of imprisonment (see Table 4). France, Germany, Ireland, Italy, 
and  Sweden  have  adapted  their  legislation  enabling  extradition  in  the  case  of 
offences referred to in Articles 2, 3 and 4. The United Kingdom's legislation does not 
provide for extradition in the case of the offences referred to in Article 4.  

As  is  demonstrated  in  Table  4,  the  specific  means  of  implementation  of  Article  6 
which applies to criminal penalties is quite heterogeneous. 

Eight Member States provide for maximum penalties of imprisonment in respect of 
the conduct referred to in Article 2: France has a maximum of 7 years imprisonment 
for  counterfeiting,  receiving  and  fraudulent  use;  Italy  has  a  maximum  penalty  of  8 
years for receiving; Germany has a maximum penalty of 10 years for receiving and 
fraudulent  use  of  counterfeited  payment  instruments;  Ireland  provides  for  a 
maximum of 10 years  imprisonment for  theft,  receiving, forgery and using of  false 
instruments; the Netherlands, 7 years; Spain provides for a penalty of imprisonment 
between 8 years (minimum) and 12 years (maximum) for counterfeiting; Sweden has 
a maximum of 6 years imprisonment for ‘gross’ theft, falsification and receiving only 
if the crime is serious (“gross”). The United Kingdom provides for a maximum of 10 
years imprisonment for forgery and handling.  

Some  Member  States  provide  for  imprisonment  penalties,  other  Member  States 
combine these with the possibility of imposing fines. 

France  provides  for  a  penalty  of  imprisonment  combined  with  a  fine;  Italy,  Ireland 
the Netherlands and the United Kingdom allow a choice between imprisonment or a 
fine  or  a  combination  of  both.  Finland  and  Germany  allow  a  choice  between 
imprisonment or a fine. Fines can vary, for example, from an unlimited fine (Ireland) 
to 750.000 euros (France) for Article 2(b), (c) and (d). Fines can also be proportional 

23 

24 

The  Spanish  penal  code  covers  (Article  400)  the  “making  and  the  “possession”  of  these  means  and 
tools. No specific reference to receiving, obtaining, sale or transfer to another person of the possession 
of means. 
NB.  Some  Member  States  have  legislation  which  is  still  partly  in  the  process  of  formal  national 
adoption, such as The Netherlands.  

13 

 
 
  
 
                                                 
considering  the  individual  characteristics  of  the  convicted  person  (for  instance  in 
Spain).  The  traditional  amount  system  has  in  the  meantime  been  replaced  in  many 
countries by a so-called day-rate system. In the traditional amount system the court 
simply fixes a certain amount of money as punishment. The day-rate system requires 
two steps: first the court must decide on the number of days the crime would deserve 
if  punished  with  the  deprivation  of  liberty  (i.e.,  a  determination  made  without 
considering the individual characteristics of the convicted person). Second the court 
fixes  a  certain  amount  of  money  per  day,  depending  on  the  daily  income  (and/or 
other  available  means)  of  the  perpetrator.  While  some  countries  (such  as  Belgium, 
Italy, the Netherlands and the United Kingdom) still keep to the traditional amount 
system, the day rate system is gaining ground in the majority of the Member States. 
In  a  few  countries  the  two  fine  systems  co-exist,  though  occasionally  for  different 
types of crimes (such as in France, Finland and Greece). In the amount system, the 
minimum fine may start in some countries with low amounts of 10 euros or less (as in 
Belgium,  France,  Finland,  Italy)  or  with  rather  high  amounts  of  720  euros  (United 
Kingdom). Similar differences can be seen in the maximum amounts, rather low with 
115 euros (Finland) and extremely high with 750.000 euros (France). In the day-rate 
system the minimum starts mostly from 5 days or less, with the exception of Sweden 
(30 days), whereas the maximum number of days varies from 4 to 5 months (Finland 
and Sweden) up to 1 year (Germany and France) and 2 years (Greece and Spain). 

Some Member States differentiate between serious and petty offences related to the 
offences provided for in Article 2 (Spain, Sweden and Finland). Spanish legislation 
does not provide for punishment for altering payment instruments; consequently no 
sanction can be imposed. Sweden, for instance, provides in the case of ‘petty theft, 
falsification,  fraud  and  receiving’  for  the  possibility  of  lower  penalties.  Most 
Member States also consider the conduct referred to in Articles 4 as punishable with 
lower  penalties  than  the  conduct  referred  to  in  Articles  2  and  3.  Furthermore,  the 
sanctions that can be imposed on the conduct referred to in Article 3, are of a lower 
level than those imposed on the conduct referred to in Article 2.  

The  assessment  as  to  whether  the  criminal  penalties  which  can  be  imposed  in  the 
Member States are sufficiently dissuasive, could in a preliminary stage be answered 
in positive way, given the fact that almost all the Member States have provided for 
the penalty of imprisonment for the conducts referred to in Article 2. The probability 
of detecting the criminal conduct, the type of prosecution (mandatory or facultative 
prosecution)  and  the  practice  of  sentencing  by  the  judiciary  in  each  Member  State, 
without doubt, has an impact on the perception of sanctions especially as to whether 
they are really considered dissuasive and effective. 

All Member States have, in so far as they have made punishable the conduct referred 
to in Article 2, 3 and 4, general provisions in their criminal legislation on the issues 
of participation, instigation and attempts, as referred to in Article 5. 

Preparatory acts seem to be generally punishable only in Sweden, whereas all other 
Member States restrict the penalisation of preparation to specific crimes. With regard 
to attempt, in the case of a felony it is generally punishable in all countries; even the 
attempt of misdemeanour is generally punishable in the majority of countries while 
in some others only if specially provided for. The attempt of a "contravention" (petty 
crime) is punishable by specific legislation in Belgium. The punishment for attempt 
is  the  same  as  for  a  completed  crime  only  in  France.  The  other  Member  States 
provide for mitigation, either obligatory (Finland, Italy and the Netherlands) or at the 

14 

 
 
  
 
discretion of the court (Germany and United Kingdom). With regard to the Member 
States,  the  unitary  model  of  participation  exists  only  in  Italy.  Although  the  other 
countries follow the differentiation model between perpetrator and accessories, they 
can be divided into two groups: one group holds perpetrators and accessories equally 
responsible while allowing differences only in sentencing (France, Italy, Finland and 
United  Kingdom),  the  other  group  provides  for  mitigation  at  least  for  accomplices, 
which  is  obligatory  in  some  countries  (Belgium,  Germany  and  Spain),  whilst  in 
others it is at the discretion of the court (Sweden). 

Many Member States have made references in their national provisions on combating 
fraud  and  counterfeiting  of  non-cash  means  of  payment,  to  general  provisions  on 
participation,  instigation  and  attempts  in  their  national  law.  Some  Member  States 
have general provisions which apply (automatically) to counterfeiting offences (that 
is  the  case,  for  instance,  with  Finland,  Italy,  Ireland,  Spain,  and  the  United 
Kingdom). 

2.2.6. 

Jurisdiction (Article 9): Table 5 

The  majority  of  the  Member  States  appear  to  comply  with  the  obligations  under 
Article 9(1)(a) and (b).  

Italy complies with the obligations under Article 9(1)(a), and with some exceptions, 
with  the  obligations  under  Article  9(1)(b):  according  to  Italian  legislation  a  citizen 
who  commits  in  a  foreign  territory  a  crime  for  which  Italian  law  prescribes 
imprisonment  for  a  minimum  threshold  of  not  less  than  3  years  shall  be  punished 
according to the law, provided he is within the territory of the State; with respect to 
crimes  for  which  a  punishment  restricting  personal  liberty  for  a  lesser  period  is 
prescribed, the offender shall be punished on demand of the Ministry of Justice, or 
on petition or complaint of the victim. Sweden and Finland have declared that they 
will  not  comply  with  Article  9(1)(c)  and  Spanish  legislation  does  not  cover  it. 
According  to  the  German  legislation  sent  to  the  Commission,  the  requirements 
deriving from Article 9 of the Framework Decision are basically covered by section 
3 et seq. of the criminal code; where offences are not covered by section 6(7) of the 
criminal code (acts against internationally protected legal interests), the jurisdiction 
provisions  contained  in  Article  9(1)(c)  of  the  Framework  Decision  are  not  to  be 
applied  (decision  in  accordance  with  paragraph  2  and  3).  In  accordance  with  the 
general  principles  of  the  law  in  the  United  Kingdom  jurisdictions,  the  courts  have 
jurisdiction  over  offences  committed  in  whole  or  in  part  on  the  United  Kingdom 
territory.  As  regards  England  and  Wales,  special  statutory  provisions  are  made  in 
respect of the fraud and forgery offences listed in section 1 of the Criminal Justice 
Act  1993.  Courts  in  England  and  Wales  have  jurisdiction  over  such  offences  if  a 
‘relevant event’ (as defined in section 2 of the 1993 Act) takes place in England and 
Wales. Similar provisions are made in respect of Northern Ireland by Articles 38-41 
of  the  Criminal  Justice  (Northern  Ireland)  Order  1996.  There  is  no  statutory 
equivalent in Scotland. However, under Scottish common law, Scottish courts have 
jurisdiction  if  the  major  elements  constituting  the  crime  or  parts  of  the  elements 
which complete the crime take place in Scotland. The United Kingdom has no bar on 
the extradition of its nationals and does not normally operate nationality jurisdiction. 
There is no nationality jurisdiction for such offences. Nor does the United Kingdom 
operate  the  kind  of  jurisdiction  mentioned  in  Article  9(1)(c).  The  United  Kingdom 
has accordingly notified the Council Secretariat under Article 9(3). 

15 

 
 
  
 
2.2.7.  Liability of and sanctions for legal persons (Articles 7 and 8): Table 6  

Articles 7 and 8 are, except for the offences they cover, drafted in similar words as 
Articles  3  and  4  of  the  Second  Protocol  of  19  June  1997  to  the  Convention  on  the 
protection of the European Communities’ financial interests25. With reference to the 
possibility afforded to it in Article 18(2) of the second Protocol, not to be bound by 
Articles  3  and  4  of  that  Protocol  for  five  years,  Austria  has  confirmed  its 
declaration26 that it will fulfil its obligations under Articles 7 and 8 of the Framework 
Decision  within  the  same  period.  Irish  legislation  meant  to  comply  especially  with 
Articles  7  and  8  has  not  yet  entered  into  force.  Spain  is  preparing  legislation  to 
comply  fully  with  Article  7.  Regarding  the  liability  of  legal  persons  the  conduct 
referred to Articles 2(b), (c), (d) and Articles 3 and 4 of the Framework Decision are 
not included in the provisions of Italian law27. Six Member States (Finland, France, 
Germany,  Ireland,  the  Netherlands  and  Sweden)  have  provided  for  such  legislation 
ensuring that legal persons can be held liable for the offences referred to in Articles 2 
to 4 committed for their benefit by persons who have a leading position within the 
legal  person.  These  Member  States  have  also  made  it  legally  possible  that  a  legal 
person can be held liable where the lack of supervision or control by the management 
of the legal person has rendered possible the commission of an offence referred to in 
Articles 2 to 4.  

In  the  United  Kingdom,  the  general  provision  concerning  legal  persons  is  made 
under  the  Interpretation  Act  1978  which  (in  Schedule  1)  provides  that  unless  the 
contrary  is  stated,  the  word  ‘person’  in  a  statute  is  to  be  construed  as  including  a 
‘body  of  persons,  corporate  or  incorporate’.  This  provision  applies  to  England  and 
Wales and to Scotland, and to any Westminster legislation that applies to Northern 
Ireland. (Similar provision is made for Northern Ireland legislation by section 37 of 
the Interpretation (Northern Ireland) Act 1954). No exception is made in the statutes 
mentioned  in  the  Notes  and  therefore  legal  persons  can  be  prosecuted  for  these 
offences. However in the case of crimes such as fraud, attribution of responsibility to 
a  legal  person  depends  on  finding  someone  with  an  appropriate  level  of  authority 
within  the  organisation  who  has  committed  the  acts  and  has  the  mental  state  in 
question.  The  Acts  referred  to  in  the  Transposition  Notes  prescribe  penalties  for 
‘persons’ guilty of the offences and these penalties therefore apply to legal as well as 
natural  persons.  In  the  case  of  legal  persons,  the  appropriate  penalty  is  a  fine  and 
fines  may  be  imposed  for  all  the  offences  mentioned.  In  addition,  UK  Courts  have 
jurisdiction under the Company Directors Disqualification Act 1986 to make, where 
an  individual  is  convicted  of  an  indictable  offence  connected  with  a  company,  a 
disqualification order which would prevent a person from being a company director, 
a receiver, or from taking part in the management etc of a company. 

Eight  Member  States  (Finland,  France,  Germany,  Ireland,  Italy,  the  Netherlands, 
Sweden,  and 
imposition  of 
administrative  or  criminal  fines  and  (sometimes)  other  measures  varying  from  a 
judicial winding up order to administrative sanctions and commercial law sanctions. 

the  United  Kingdom)  have  provided  for 

the 

25 
26 
27 

OJ C 221, 19.7.1997, p. 11. 
See OJ L 140, 14.6.2000, p. 3. 
D.L. vol. 8 June 2001, n°231 provides for the liability of the legal persons only with reference to some 
offences: fraud, where the victim is the State, corruption and forgery of currency. 

16 

 
 
  
 
                                                 
In  table  6  this  wide  variety  of  administrative,  civil  and  criminal  sanctions  or 
measures is demonstrated.  

France also provides for the possibility of criminal fines, various criminal measures, 
such as judicial supervision for at least 5 years and a specific criminal confiscation 
measure. Finland provides for a corporate fine and various administrative measures. 
Germany  uses  a  system  of  administrative  sanctions  which  can  be  combined,  for 
instance, with commercial law sanctions, such as, in serious cases, the winding up of 
a  company.  Italian  criminal  legislation  provides  for  fines  and  for  special  measures 
such  as,  the  exclusion  from  entitlement  to  public  benefits.  In  the  Netherlands 
sanctions  can  be  imposed  varying  from  a  criminal  fine  up  to  €  454.545  to  specific 
measures,  including  the  deprivation  of  illegally  obtained  benefits.  Sweden  has  the 
possibility to impose a criminal fine up to 3 million Swedish crowns (approximately 
€ 319.829,42). The above mentioned Member States appear to comply with Article 8 
which leaves it to the discretion of a Member State to decide to impose, apart from 
fines, specific measures. In this respect table 6 also demonstrates that these Member 
States  have  taken  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. 

3. 

CONCLUSIONS 

3.1. 

General 

Like  directives,  Framework  Decisions  must  be  implemented  within  the  period 
prescribed  therein.  National  legislation  necessary  to  comply  with  the  Framework 
Decision should therefore have been adopted and entered into force. 

Some  Member  States  have  not  transmitted  on  time  to  the  Commission  all  relevant 
texts of the provisions transposing into their national law the obligations imposed on 
them  under  the  Framework  Decision.  The  factual  assessment  and  conclusions 
subsequently drawn are therefore sometimes based on incomplete information. 

Five Member States (France, Germany, Italy, Ireland and the United Kingdom) have 
been  able  to  meet  the  deadline  of  Article  14  (1)  by  taking  all  measures  to  comply 
with  the  provisions  of  the  Framework  Decision  by  2  June  2003.  Finland  adopted 
measures transposing the Framework Decision after the deadline.  

Belgium has stated that its national legislation already complies with the provisions 
of  the  Framework  Decision  and  that  no  transposition  is  required,  without  giving 
further explanation on the relevant legislation. Austria and Greece have informed the 
Commission that they are in the process of drafting their national legislation. Austria 
pledged that it would be ready by end 2003. Greece informed the Commission that a 
special legal preparatory committee was expected to hand over its work in the middle 
of  July  2003.  Luxembourg  sent  an  informal  message  to  the  Commission  in  July 
2003,  mentioning  that  its  national  legislation  would  be  finalised  in  October  2003. 
None  of  these  three  Member  States  has  transmitted  anything  formally  so  far.  The 
Netherlands has taken measures which have not yet entered into force. Denmark and 
Portugal have not answered the Commission. 

17 

 
 
  
 
The implementation of Article 11 (2) should be improved first of all by providing the 
General Secretariat of the Council and the Commission on a standardised basis and 
on time with the texts which transpose the obligations imposed under the Framework 
Decision. 

3.2. 

Specific 

Article 2 

Two Member States appear not to have taken yet all measures to comply fully with 
the  Framework  Decision:  Spanish  criminal  legislation  does  not  provide  for 
punishment of fraudulent altering of payment instruments. Sweden does not comply 
with  Article  2(d):  Swedish  criminal  legislation  does  not  provide  for  punishment  of 
the  fraudulent  use  of  a  stolen  or  otherwise  unlawfully  appropriated,  or  of  a 
counterfeited or falsified, payment instrument.  

The  legislation  of  seven  Member  States  (Finland,  France,  Germany,  Ireland,  Italy, 
the  Netherlands,  the  United  Kingdom)  now  complies  with  Article  2:  only  Finland 
and  France  have  initiated  new  legislation  especially  designed  to  comply  with  the 
Framework Decision. Finland's criminal legislation provides for a broad concept of 
the  fraudulent  issuing  of  counterfeit  payment  instruments.  France  has  prepared 
specific legislation to comply with these provisions. 

Article 3 

Finland,  France,  Germany,  Ireland,  Italy,  the  Netherlands,  Spain,  the  United 
Kingdom have explicitly introduced in their criminal law the conduct that should be 
made  punishable  according  to Article  3, whereas Swedish criminal legislation  does 
not  provide  for  a  specific  provision  making  punishable  the  conduct  referred  to  in 
Article 3. 

Article 4 

The majority of Member States who have transmitted information to the Commission 
comply either explicitly or, in most cases, implicitly with Article 4. Sweden appears 
not to have transposed the obligations under Article 4. The Netherlands is preparing 
a specific measure to comply with this Article. 

Article 5 

All Member States who have replied to the Commission have introduced, in so far as 
they sanction the conduct referred to in Article 2, 3 and 4, general provisions in their 
legislation  on  the  issues  of  participation,  instigation  and  attempts,  as  referred  to  in 
Article 5. 

Many  Member  States  have  made  references  in  provisions  on  combating  fraud  and 
counterfeiting of non-cash means of payment to their general criminal law provisions 
on  participation,  instigation  and  attempts.  Some  Member  States  have  general 
provisions  which  apply  (automatically)  to  counterfeiting  offences  (that  is  the  case, 
for  instance,  with  Finland,  Ireland,  Italy,  Spain,  the  United  Kingdom).  The  French 
legislation mentions the hypothesis of attempt in the general provisions and also in 
the article of the specific offence which provides specific sanctions. 

18 

 
 
  
 
Article 6 

The  implementation  of  Article  6  which  applies  to  criminal  penalties  is  quite 
heterogeneous. 

Almost  all  Member  States  who  have  replied  to  the  Commission  have,  or  will  have 
when  their  legislation  on  this  point  enters  into  force,  succeeded  in  meeting  the 
obligation  imposed  by  Article  6  that  the  fraudulent  making  or  altering  of  currency 
provided for in Article from 2 to 4 shall be punishable by effective, proportionate and 
dissuasive criminal penalties. Since Swedish criminal legislation does not provide for 
punishment of the fraudulent use of a stolen or otherwise unlawfully appropriated, or 
of a counterfeited or falsified, payment instrument and since Spanish legislation does 
not provide for punishment of altering of currency, consequently no sanction can be 
imposed nor would extradition be possible for those offences. 

The  evaluation  of  whether  or  not  the  criminal  penalties  which  can  be  imposed  in 
Member  States  are  sufficiently  dissuasive,  could  on  the  face  of  it  be  affirmative, 
given the fact that all Member States who have sent information to the Commission 
have  in  respect  to  the  conduct  referred  to  in  Article  2,  provided  for  a  (maximum) 
imprisonment penalty. The probability of detecting the criminal conduct, the type of 
prosecution (mandatory or facultative prosecution) and the practice of sentencing by 
the judiciary of each Member State, beyond doubt, have an impact on the perception 
of  sanctions  especially  as  to  whether  they  can  really  be  considered  dissuasive  and 
effective. 

The majority of Member States have, or will have after completing their legislative 
procedure,  legislation  enabling  extradition  in  the  case  of  offences  referred  to  in 
Article from 2 to 4. 

When  a  Member  State  qualifies  a  certain  conduct  as  a  petty  offence  with 
corresponding  lower  sanctions,  sometimes  extradition  is  not  possible.  This  might, 
however, be justified by the fact that sanctions should be proportionate. 

Articles 7 and 8 

Seven Member States (Finland, France, Germany, Ireland, the Netherlands, Sweden, 
and  the  United  Kingdom)  have  legislation  ensuring  that  legal  persons  can  be  held 
liable  for  the  offences  referred  to  in  Articles  2  to  4  committed  for  their  benefit  by 
persons who have a leading position within the legal person. These Member States 
also have made it legally possible that a legal person can be liable where the lack of 
supervision or control by the management of the legal persons has rendered possible 
the commission of an offence referred to in Articles 2 to 4. 

Six  Member  States  (France,  Finland,  Germany,  Ireland,  Italy,  Sweden)  whose 
legislation  is  in  force,  have  provided  the  possibility  to  impose  administrative  or 
criminal fines and sometimes other measures varying from judicial winding up order 
to administrative sanctions and commercial law sanctions. 

The Dutch legislation has not yet entered into force. Spain is preparing legislation to 
comply fully with Article 7.  

19 

 
 
  
 
From  the  replies  sent  to  the  Commission,  it  seems  as  if  several  Member  States 
considered that for the most part, their current legislation already corresponds to the 
obligations  of  the  FD.  Consequently,  only  certain  clarifications  and  additions  to 
national legislation were required. At the time of completion of this report, it is to be 
regretted that those Member States which had not sent legislation or which were in 
the process of transposing the Framework Decision, have not done so. 

20 

 
 
  
 
Annex I to 

The Report of the Commission based on Article 14 of the Council Framework Decision of 28 
May 2001 combating fraud and counterfeiting of non cash means of payment28 

Table 1 : Overview of contributions received from Member States 

Austria 

Belgium 

Denmark 

Finland 

France 

Germany 

Greece 

Ireland 

Italy 

Luxembourg 

Netherlands 

Portugal 

Sweden 

Spain 

United Kingdom 

Reply 29.7.03, no legislation sent 

Reply 24.6.2003: transposition not 
needed  

No reply 

4.7.2003 

13.6.2003 

12.6.2003 

Reply 13.6.2003, no legislation sent. 

18.7.2003 & 25.11.2003 

15.9.2003 

9.7.2003 

20.6.2003 

No reply 

3.7.2003 

4.7.2003 

8.7.2003 

28 

OJ L 149, 2.6.2001, p. 1 

21