39 Amendments of Eva JOLY related to 2017/0226(COD)
Amendment 32 #
Proposal for a directive
Recital 3
Recital 3
(3) Council Framework Decision 2001/413/JHA44 needs to be updated and complemented by further provisions on offences, penalties and, cross-border cooperation, prevention and assistance to victims. _________________ 44 Council Framework Decision 2001/413/JHA of 28 May 2001 on combating fraud and counterfeiting of non- cash means of payment (OJ L 149, 2.6.2001, p. 1).
Amendment 44 #
Proposal for a directive
Recital 9
Recital 9
(9) Effective and efficient criminal law measures are essential to protect non-cash means of payment against fraud and counterfeiting. In particular, a common criminal law approach is needed to the constituent elements of criminal conduct that contribute to or prepare the way for the actual fraudulent use of means of payment. Behaviour such as the collection and possession of payment instruments with the intention to commit fraud, through, for instance, phishing or skimming, and their distribution, for example by selling credit card information on the internet, should thus be made a criminal offence in its own right without being directly linked to the actual fraudulent use of means of payment. So such criminal conduct should also cover circumstances where possession, procurement or distribution does not necessarily lead to fraudulent use of such payment instruments, if the offender is aware of such a possibility (dolus eventualis). This Directive does not sanction the legitimate use of a payment instrument, including and in relation to the provision of innovative payment services, such as services commonly developed by fintech companies.
Amendment 51 #
Proposal for a directive
Recital 12
Recital 12
(12) Jurisdictional rules should ensure that the offences laid down in this Directive are prosecuted effectively and according to a clear set of criteria. In general, offences are best dealt with by the criminal justice system of the country in which they occur. Member States should therefore establish their jurisdiction, by order of priority, over offences committed on their territory, over offences committed by their nationals and over offences that cause damage in their territory. Member States should be able to derogate from the order of priority on a case-by-case basis, if it is proved necessary for the efficiency of a particular investigation, for example if a specific Member State is more aware of the perpetrators of the offence or is more likely to identify them. It should be possible for Member States to have recourse to Eurojust to coordinate their action and resolve conflicts of jurisdiction that may arise.
Amendment 55 #
Proposal for a directive
Recital 15
Recital 15
(15) Given the need for special tools to effectively investigate fraud and counterfeiting of non-cash means of payment, and their relevance for effective international cooperation between national authorities, investigative tools that are typically used for cases involving organised crime and other serious crime should be available to competent authorities in all Member States for the investigation of such offences. Taking into account the principle of proportionality, the use of such tools in accordance with national law should be commensurate with the nature and gravity of the offences under investigation. In addition, law enforcement authorities and other competent authorities should have timely access to relevant information in order to investigate and prosecute the offences laid down in this Directive. Adequate and sufficient human and financial resources should be allocated to competent authorities in order to properly investigate and prosecute the offences laid down in this Directive.
Amendment 58 #
Proposal for a directive
Recital 16
Recital 16
(16) In many cases, criminal activities underlie incidents that should be notified to the relevant national competent authorities under Directive (EU) 2016/1148 of the European Parliament and the Council46 . Such incidents may be suspected to be of criminal nature even if the evidence of a criminal offence is not sufficiently clear from the outset. In this context, relevant operators of essential services and digital service providers should be encouraged to share the reports required under Directive (EU) 2016/1148 with law enforcement authorities and financial intelligence units so as to form an effective and comprehensive response and to facilitate attribution and accountability by the perpetrators for their actions. In particular, promoting a safe, secure and more resilient environment requires systematic reporting of incidents of a suspected serious criminal nature to law enforcement authorities. Moreover, when relevant, Computer Security Incident Response Teams designated under Article 9 of Directive (EU) 2016/1148 should be involved in law enforcement investigations with a view to providing information, as considered appropriate at national level, and also providing specialist expertise on information systems. _________________ 46 Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1).
Amendment 59 #
Proposal for a directive
Recital 17
Recital 17
(17) Major security incidents as defined in Article 96 of Directive (EU) 2015/2366 of the European Parliament and the Council47 may be of criminal origin. Where relevant, payment service providers should be encouraged to share with law enforcement authorities and financial intelligence units the reports they are required to submit to the competent authority in their home Member State under Directive (EU) 2015/2366. _________________ 47 Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35).
Amendment 62 #
Proposal for a directive
Recital 18
Recital 18
(18) A number of instruments and mechanisms exist at Union level to enable the exchange of information among national law enforcement authorities to investigate and prosecute crimes. To facilitate and speed up cooperation among national law enforcement authorities and make sure that those instruments and mechanisms are used to their fullest extent, this Directive should strengthen the importance of the operational points of contact introduced by Council Framework Decision 2001/413/JHA. Member States may decide to make use of the existing network of operational points of contact, such as that set up in Directive 2013/40/EU of the European Parliament and of the Council48 . They should provide effective assistance, for example facilitating the exchange of relevant information and the provision of technical advice or legal information. To ensure the network runs smoothly, each point of contact should be able to communicate quickly with the point of contact of another Member State. Given the significant trans-border dimension of this area of crime and in particular the volatile nature of the electronic evidence, Member States should be able to promptly deal with urgent requests from this network of points of contact and provide feedback within eightfour hours. _________________ 48 Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA (OJ L 218, 14.8.2013, p. 8).
Amendment 65 #
Proposal for a directive
Recital 19
Recital 19
(19) Reporting crime without undue delay to public authorities is of great importance in combating fraud and counterfeiting of non-cash means of payment, as it is often the starting point of the criminal investigation. Measures should be taken to encourage reporting by natural and legal persons, in particular financial institutions to law enforcement and judicial authorities. The measures should facilitate the immediate reporting of crime, including through the establishment of secure national online fraud-reporting platforms. These measures can be based on various types of action, including legislative ones, such as obligations to report suspected fraud, or non-legislative ones, such as setting up or supporting organisations or mechanisms favouring the exchange of information, or awareness raising. Any such measure that involves processing of the personal data of natural persons should be carried out in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council49 . In particular, any transmission of information regarding preventing and combating offences relating to fraud and counterfeiting of non-cash means of payment should comply with the requirements laid down in Regulation (EU) 2016/679, notably the lawful grounds for processing. _________________ 49 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).
Amendment 66 #
Proposal for a directive
Recital 19 a (new)
Recital 19 a (new)
(19a) Investigation and prosecution of all types of fraud and counterfeiting of non-cash means of payment, including those involving small amounts of money, are particularly important in order to proactively combat this phenomenon. Reporting obligations, exchange of information and statistical reports are efficient ways to detect fraudulent activities, especially similar activities that involve small amounts of money when considered separately. Competent authorities should therefore be encouraged to use all available information, tools and instruments in order to launch investigations more systematically than is currently the case.
Amendment 67 #
Proposal for a directive
Recital 19 b (new)
Recital 19 b (new)
(19b) It is essential that relevant information on fraud and counterfeiting of non-cash means of payment is transmitted in a timely manner to the national financial intelligence units in order to enable further analysis and detection of criminal financial flows. In addition, the creation of a European financial intelligence unit would help to ensure efficient exchange of information and to improve coordination and cooperation across the Union against such frauds.
Amendment 71 #
Proposal for a directive
Recital 21 a (new)
Recital 21 a (new)
(21a) Victims of fraud related to non- cash means of payment should also have the right to free legal aid, at least those who lack sufficient resources to pay for legal assistance. Member States should be able to determine this lack of resources through a means test in which due account should be taken of all relevant and objective factors, such as the income, capital and family situation of the person concerned, the costs of legal assistance and the standard of living in the relevant Member State.
Amendment 72 #
Proposal for a directive
Recital 23
Recital 23
(23) The Commission and the Member States should establish or strengthen policies to prevent fraud and counterfeiting of non-cash means of payment, and measures to reduce the risk of becoming victims of such offences, by means of information and awareness- raising campaigns and research and education programmes, in particular for the persons most vulnerable to fraud such as phishing, for example elderly and young persons.
Amendment 76 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in the area of fraud and counterfeiting of non-cash means of payment. It also aims to facilitate the prevention of such offences, to assist and support victims and to improve cooperation between judicial and other competent authorities.
Amendment 92 #
Proposal for a directive
Article 4 – paragraph 1 – point c
Article 4 – paragraph 1 – point c
(c) possession, procurement for use, import, export, sale, transport, distribution or otherwise making available of a stolen or otherwise unlawfully appropriated, or of a counterfeited or falsified payment instrument in order for it to be used fraudulently.
Amendment 93 #
Proposal for a directive
Article 4 – paragraph 1 – point c a (new)
Article 4 – paragraph 1 – point c a (new)
(ca) possession of a stolen or otherwise unlawfully appropriated, or of a counterfeited or falsified, payment instrument in order for it to be used fraudulently, and knowing at the time of receipt that such instrument is derived from criminal activity or from an act of participation in such an activity.
Amendment 96 #
Proposal for a directive
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
Member States shall take the necessary measures to ensure that performing or causinghaving someone else perform a transfer of money, monetary value or virtual currencies in order to make an unlawful gain for the perpetrator or a third party is punishable as a criminal offence, when committed intentionally by:
Amendment 119 #
Proposal for a directive
Article 10 – paragraph 1 – point a a (new)
Article 10 – paragraph 1 – point a a (new)
(aa) temporary or permanent ban on entering into contracts with public authorities;
Amendment 125 #
Proposal for a directive
Article 11 – paragraph 1 – point a
Article 11 – paragraph 1 – point a
(a) the offence is committed in whole or in part in its territory; or
Amendment 127 #
Proposal for a directive
Article 11 – paragraph 1 – point b
Article 11 – paragraph 1 – point b
(b) the offender is one of its nationals; or
Amendment 128 #
Proposal for a directive
Article 11 – paragraph 1 – point c
Article 11 – paragraph 1 – point c
(c) the offence causes damage in its territory including damage resulting from the theft of the identity of a person.; or
Amendment 129 #
Proposal for a directive
Article 11 – paragraph 1 – point c a (new)
Article 11 – paragraph 1 – point c a (new)
(ca) the offender has his or her habitual residence in its territory, or;
Amendment 130 #
Proposal for a directive
Article 11 – paragraph 1 – point c b (new)
Article 11 – paragraph 1 – point c b (new)
(cb) the offence is committed for the benefit of a legal person established in its territory, or;
Amendment 131 #
Proposal for a directive
Article 11 – paragraph 1 – point c c (new)
Article 11 – paragraph 1 – point c c (new)
(cc) the offence is committed against one of its nationals or a person who is an habitual resident in its territory.
Amendment 134 #
Proposal for a directive
Article 11 – paragraph 2 a (new)
Article 11 – paragraph 2 a (new)
Amendment 135 #
Proposal for a directive
Article 11 – paragraph 3
Article 11 – paragraph 3
Amendment 139 #
Proposal for a directive
Article 11 – paragraph 3 a (new)
Article 11 – paragraph 3 a (new)
3a. Member States may have recourse to Eurojust in order to facilitate cooperation between their judicial authorities and the coordination of their action.
Amendment 140 #
Proposal for a directive
Article 12 – title
Article 12 – title
Effective investigations and cooperation
Amendment 144 #
Proposal for a directive
Article 12 – paragraph 1 a (new)
Article 12 – paragraph 1 a (new)
1a. Each Member State shall ensure that adequate and sufficient human and financial resources, as well as trainings, are allocated to investigate and prosecute the offences referred to in Articles 3 to 7.
Amendment 145 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. Member States shall take the necessary measures to ensure that, where national law oblige natural and legal persons to submit information regarding offences referred to in Articles 3 to 7, such information reaches the authorities investigating or prosecuting those offences without undue delay and that national authorities investigating or prosecuting offences referred to in Articles 3 to 7 are empowered to cooperate with other national authorities and their counterparts in other Member States.
Amendment 148 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. For the purpose of exchanging information relating to the offences referred to in Articles 3 to 7, Member States shall ensure that they have an operational national point of contact available 24 hours a day and seven days a week. Member States shall also ensure that they have procedures in place so that urgent requests for assistance are promptly dealt with and the competent authority replies within eightfour hours of receipt, at least indicating whether the request will be answered, and the form and estimated time of such an answer. Member States may decide to make use of the existing networks of operational points of contact.
Amendment 154 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Member States shall take the necessary measures to ensure that appropriate reporting channels, including via a secure national online fraud- reporting platform, are made available in order to facilitate reporting of the offences referred to in Articles 3 to 7 to law enforcement authorities, financial intelligence units and other competent national authorities without undue delay.
Amendment 157 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. Member States shall take the necessary measures to encouragesure that financial institutions and other legal persons operating in their territory to report without undue delay suspected fraud to law enforcement authorities, financial intelligence units and other competent authorities, for the purpose of detecting, preventing, investigating or prosecuting offences referred to in Articles 3 to 7.
Amendment 162 #
Proposal for a directive
Article 15 – paragraph 1 a (new)
Article 15 – paragraph 1 a (new)
1a. Member States shall ensure that natural persons who have suffered a prejudice from offences referred to in Articles 3 to 7, committed by the misuse of personal data, are offered free legal aid, at least those who lack sufficient resources to pay for legal assistance. Member States may apply a means test to determine whether natural persons have the right to free legal aid.
Amendment 168 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
The Commission and Member States shall take appropriate action, including through the Internet, such as information and awareness-raising campaigns, research and education programmes, where appropriate in cooperation with stakeholders, aimed at reducing overall fraud, raising awareness and reducing the risk of becoming a victim of fraud, in particular for vulnerable persons. The Commission and Member States shall conduct such campaigns regularly. Member States shall ensure that sufficient funding is made available for such campaigns.
Amendment 170 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. Member States shall ensure that a system is in place for the recording, production and provision of anonymised statistical data measuring the reporting, investigative and judicial phases concerning the offences referred to in Articles 3 to 7.
Amendment 173 #
Proposal for a directive
Article 17 – paragraph 3
Article 17 – paragraph 3
3. The anonymised statistical data referred to in paragraph 2 shall, as a minimum, cover the number of offences referred to in Articles 3 to 7 reported to the Member States, the number of cases investigated, the number of persons prosecuted for and convicted of the offences referred to in Articles 3 to 7, and data on the functioning of the reporting, investigative and judicial phases concerning these offences.
Amendment 178 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [124 months after entry into force]. They shall immediately inform the Commission thereof.
Amendment 179 #
Proposal for a directive
Article 20 – paragraph 1
Article 20 – paragraph 1
1. The Commission shall, by [4836 months after entry into force], submit a report to the European Parliament and the Council, assessing the extent to which the Member States have taken the necessary measures in order to comply with this Directive. Member States shall provide the Commission with necessary information for the preparation of the report.
Amendment 181 #
Proposal for a directive
Article 20 – paragraph 2
Article 20 – paragraph 2
2. The Commission shall regularly, by [9648 months after entry into force] and every 48 months thereafter, carry out an evaluation of this Directive on combating fraud and counterfeiting of non-cash means of payment, as well as its impact on fundamental rights, and submit a report to the European Parliament and to the Council.