PENAL SANCTIONS AGAINST COUNTERFEITING
IN CONNECTION WITH THE INTRODUCTION OF THE EURO
(a)
(20624)
12585/99
DROIPEN 18
(b)
(20924)
13450/99
DROIPEN 21
(c)
(20925)
14102/99
DROIPEN 23
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Draft Framework Decision on increasing protection by penal sanctions
against counterfeiting in connection with the introduction of the euro:
amended text.
Draft Framework Decision on increasing protection by penal sanctions
against counterfeiting in connection with the introduction of the euro:
amended text from COREPER.
Draft Framework Decision on increasing protection by penal sanctions
against counterfeiting in connection with the introduction of the euro:
outcome of Council proceedings.
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| Legal base: |
Articles 31(e) and 34(2)(b) EU; consultation; unanimity
|
| |
| Forwarded to the Council:
| (b) 24 November 1999
(c) 2 December 1999
|
| Deposited in Parliament:
| (b) 2 February 2000
(c) 2 February 2000
|
| Department: |
Home Office |
| Basis of consideration:
| Minister's letter of 21 December 1999 and EM of 14 February 2000
|
| Previous Committee Report:
| (a) HC 23-i (1999-2000), paragraph 3 (24 November 1999)
(b) and (c) None
|
| To be discussed in Council:
| Informal JHA Council 3-4 March
|
| Committee's assessment:
| Legally and politically important
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| Committee's decision:
| Cleared, but further information requested
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Background
5.1 This draft Framework Decision has been
drawn up to supplement the International Convention of 20 April
1929 for the Suppression of Counterfeiting Currency and its
Protocol following the introduction of the euro. When we last
considered it (in November 1999), we queried the proposed legal
base, and noted that our sister Committee in the House of Lords
had raised a number of other questions on the text. We did not,
therefore, clear the document, now document (a).
5.2 The Minister of State at the Home Office
(Mrs Barbara Roche) wrote to us on 21 December, reporting that
the draft Framework Decision had been "agreed in substance"
at the Justice and Home Affairs Council on 2-3 December and attaching
a copy of a letter to Lord Tordoff, addressing the outstanding
questions. She undertook to submit a revised text, as agreed at
the Council, once she received it.
5.3 We have now been provided with two new
documents - document (b), the text discussed at the JHA Council,
and document (c), a note of the Council outcomes, together with
an EM covering both. (The EM tells us that no post-Council text
has been produced.)
The Minister's letter
5.4 In response to the query over the legal
base (raised by both ourselves and our sister Committee), the
Minister states:
"As well as citing Article 34(2)(b) as a legal
base, the draft Framework Decision also cites Article 31(e). Article
31(e) envisages measures establishing minimum rules relating to
the constituent elements of criminal acts and to penalties in
the field of, inter alia, organised crime. Although counterfeiting
is sometimes done by individuals acting alone, it is more likely
to be the work of an organized criminal group. Therefore, in my
view the draft Framework Decision is appropriately based on Articles
31(e) and 34(2)(b)."
The new documents and the Government's view
5.5 The Minister expresses her support for
the draft Framework Decision, and outlines the main changes in
the new documents as follows:
"The Government fully supports the aims of the
draft Framework Decision, and believes that concerted action across
the European Union is required to prevent counterfeiting of the
euro. The Government is content with the provisions contained
in the draft Framework Decision [document (b)]. The main changes
to the text of [document (a)], the previous version of the instrument
which was deposited for scrutiny in November, are outlined below.
Article 6(2)
"A new paragraph 2 has been added to Article
6. This requires Member States to establish penalties of at least
8 years imprisonment for the more serious offences provided for
in Article 3(1)(a). In the UK, the maximum penalty for these counterfeiting
offences is 10 years, and the Government can therefore agree to
this paragraph, as it is not expressed in a way which would limit
judicial discretion as to the appropriate level of sentence in
each case. The introduction of a provision on minimum rules on
penalties is provided for under Article 31(e) of the TEU. [Document
(b)] includes an additional paragraph added to the preamble at
the UK's request which ensures that Article 6(2) will not automatically
be taken as a precedent for future measures under Article 31(e)
of the TEU. The December JHA Council also agreed to a declaration
to the same effect [Annex to [document (c)]].
Article 7(1)
"A second indent has been added to Article 7(1).
This aligns the offences outlined in Articles 3 to 5 of the Framework
Decision with Articles 8 and 9 of the 1929 Convention, so that
countries which, as a general rule, accept the principle of extraterritorial
jurisdiction are obliged to apply it in the case of counterfeiting
offences, and so that Member States which do not recognise the
principle of extradition of nationals are obliged to punish their
nationals who commit counterfeiting offences abroad on their return,
as though they had committed those offences in their home territory.
Given that the UK does not, as a general rule, accept the principle
of extra-territorial jurisdiction, and that the UK has no bar
on extraditing its nationals, these provisions would not apply
to the UK.
Article 7(2)
"Article 7(2) requires Member States that have
adopted the euro to take universal jurisdiction for offences of
counterfeiting the euro. Although this provision was also included
in [document (a)], Article 7(2a) of [document (a)] stated that
Article 7(2) would not automatically apply to EU Member States
who were not participating in the euro at the time the Framework
Decision is adopted when they adopted the euro, but that instead
the Council would examine, when the Member State applied to join
the euro, how to ensure that the offences referred to in Articles
3 to 5 would be punishable in the Member State. However, paragraph
2a has been deleted from [document (b)]. Given the difficulty
and cost for the UK to mount successful prosecutions for offences
committed outside the UK (due to the heavy reliance on oral evidence
within the English legal system), the Government supported maintaining
Article 7(2a). However, this did not have the support of other
Member States who felt that a common rule should apply to all
Member States participating in the euro. Although the current
text is not ideal, given that the text has been amended, at the
UK's request, from the requirement in [(20339[28])]
for all EU Member States (regardless of whether they had
adopted the euro) to take universal jurisdiction, the Government
is content with this compromise drafting. In addition, the taking
of universal jurisdiction is not unknown to the UK where it is
taken for serious offences, such as crimes against the State and
torture. In most cases this has been taken in response to the
requirements of international agreements, and the UK's agreement
to this provision in [document (b)] would be in line with this
policy.
Article 7(3)
"Article 7(3) follows the text of Article 7(4)
in [document (a)]. At the December Justice and Home Affairs Council,
a new Article 7(4) was proposed to require jurisdiction regarding
offences involving counterfeiting of the euro to lie, as a priority,
with the Member State where the offence was committed or, if this
criterion is not available, with the Member State to which the
offender belongs. The Government supports this introduction of
a 'territory-nationality link' between the Member States and offenders.
At present, the text is unclear which Member State should take
the initiative for the prosecution of counterfeiting when all
Member States have jurisdiction.
Article 8(1)
"The requirement in Article 8(1) of [document
(a)] for Member States to ensure that legal persons, under certain
conditions, can be held liable for the offences outlined in Articles
3 to 5, has been amended to apply also to their 'involvement as
accessories or instigators in such offences or the attempted commission
of the offences referred to in Article 3(1)(a) and (b)', rather
than to their 'involvement in the commission of such offences
where this is punishable'. This amendment introduces more precise
language than that used in [document (a)] by targeting behaviour
of a secondary nature in attempting the commission of an offence.
Article 9(1)
"Article 9(1) now refers to legal persons held
liable pursuant to Article 8(1), rather than pursuant to Article
10. This corrects a typing mistake in [document (a)]."
Conclusion
5.6 We have already raised with the Home
Secretary, in a wider context, what exactly is meant by an agreement
"in substance" in a situation where a document remains
under scrutiny in both Houses. On this occasion, therefore, we
simply note that a significant degree of progress was obviously
made at the JHA Council, and we thank the Minister for her full
and detailed EM.
5.7 We also thank her for explaining
why she is content with the proposed legal base: although we are
not totally convinced by the explanation ourselves, we shall not
press the argument further. We merely note that, in extending
the concept of "organised crime" to any crime which
is more likely to be committed by a criminal group than by an
individual, the Government is prepared to concede a wide scope
for Community action on judicial co-operation in criminal matters.
5.8 We also note that the Government
has had to agree — as a compromise — the drafting
in Article 7(2) which will commit it to take universal jurisdiction
for offences of counterfeiting the euro, but not until it has
adopted the euro.
5.9 We are not clear whether the proposed
new Article 7(4) has been agreed or not. We are also unclear as
to the timetable for receipt of the European Parliament's opinion.
5.10 Although we seek further information
on these last two points, we are content to clear all the documents
now.
28 An earlier version of the text: see HC 34-xxviii
(1998-99), paragraph 12 (20 October 1999) and HC 23-i (1999-2000),
paragraph 3 (24 November 1999). Back
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