Counterfeiting The Euro: The Eu Legislature Applies The Regulation Of Ineffectiveness

Steve Peers

In roughly of its cardinal judgments concerning European Union criminal law, close notably Pupino and its judgments on the legal base of operations for environmental criminal offence legislation, the Court of Justice of the European Union (CJEU) has attempted to strengthen the regulation of effectiveness inwards this area. However, the European Union legislature has lately agreed on a new Directive on counterfeiting the euro, which could alone hold out described equally an application of the regulation of ineffectiveness.

Background

The number of counterfeiting the euro is currently addressed yesteryear a number of measures, close notably a pre-Lisbon measure, a Framework Decision forming usage of the previous 'third pillar', which dates from 2000. This Framework Decision sets out noun criminal police delineate rules regarding counterfeiting currencies, including the euro. It requires Member US to define equally a criminal offence the fraudulent making or altering of currency, equally good equally a number of like offences.

The diverse offences must hold out 'punishable yesteryear effective, proportionate together with dissuasive criminal penalties, including penalties involving deprivation of freedom which tin give ascent to extradition'. More precisely, the offence of fraudulent making or altering of currency must hold out punishable yesteryear a possible maximum penalization of at to the lowest degree 8 years. This was the get down fourth dimension the European Union had included a dominion on sentencing in its noun criminal police delineate legislation, together with close such European Union measures adopted since conduct maintain included farther sentencing rules.

The novel Directive

In its proposal for a Directive to supersede the Framework Decision, the Commission over again hoped to pause novel ground: it suggested that for the get down time, European Union legislation should found a minimum judgement for for certain crimes. In this case, at that spot would hold out a minimum penalization of at to the lowest degree vi months' imprisonment for for certain offences of counterfeiting currency, if at to the lowest degree €10,000 was involved.

The Commission's rationale for this proposal was that many Member US had provided for no minimum sanctions, or alone for fines equally a penalization equally regards counterfeiting currency, thence increasing the incentive for counterfeiters to 'forum-shop' for a jurisdiction which would process them quite leniently if they were caught. At p xiii of its impact assessment, the Commission offers convincing bear witness that this is taking place. In iv Member US amongst no minimum sanctions, or fines equally minimum sanctions, at that spot were 343 cases of illegal printeries dismantled from 2002-2011 (86 cases/Member State). In 11 Member US which supply for at to the lowest degree vi months' imprisonment for counterfeiting currency, at that spot were alone 179 such cases during the same catamenia (16 cases/Member State). This discrepancy isn't due to the size of Member States, since at that spot was alone ane large Member State inwards the get down category, together with 3 large Member US inwards the second. As the Commission suggests, 'these figures appear to suggest that Member US amongst depression levels of sanctions tend to attract counterfeiters'.

However, the European Parliament (EP) together with the Council were non willing to conduct maintain the Commission's proposal on this point. The finally agreed Directive alone provides for the electrical flow 8 yr possible maximum judgement for fraudulent making or altering of currency, adding a v yr possible maximum judgement for related crimes. But at that spot is no provision on minimum criminal sanctions.

On the other hand, 2 other innovations proposed yesteryear the Commission were accepted. First of all, Member US volition conduct maintain to supply for 'effective investigative tools', such equally interception together with hole-and-corner agents, equally regards counterfeiting currency. This volition forestall investigations beingness dropped due to the lack of such techniques beingness available (for an instance of this happening inwards practice, run into p. sixteen of the acquit upon assessment). Secondly, Member US volition conduct maintain to permit identification of counterfeits patch criminal proceedings are underway. This volition speed upward the procedure of ensuring that the bogus currency created from the illegal printing press is rejected (for an instance of bogus €500 notes beingness accepted because at that spot was no early on access to the counterfeits, run into p. eighteen of the acquit upon assessment). The European Parliament also insisted upon a novel clause requiring the Commission to collect data on the numbers of prosecutions.

The adoption of the Directive volition give-up the ghost along the procedure of replacing pre-Lisbon 3rd pillar acts amongst ordinary European Union legislation (four other Framework Decisions conduct maintain been replaced yesteryear Directives to date). However, since the goal of the transitional catamenia relating to pre-Lisbon 3rd pillar acts is close (the commons rules on infringement actions together with references from national courts volition apply from 1 Dec 2014), this does non affair really much inwards practice.

The Directive volition non apply to the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland together with Denmark, matching exactly the opt-out rules relating to the single currency (all other non-eurozone Member US must adopt the euro inwards principle).  While the Framework Decision volition nonetheless apply to those countries for now, the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland has decided to opt out of it (without applying to opt dorsum in) equally from 1 Dec this year. In the hypothetical trial that the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland together with then decriminalises the counterfeiting of the euro on its territory, that would arguably hold out a breach of the regulation of 'sincere cooperation' inwards European Union law.

Comments

One wonders why the European Union legislature puts such store yesteryear the Commission producing comprehensive acquit upon assessments, together with and then ignores the bear witness fix out inwards them. It is truthful that a minimum criminal judgement mightiness hold out at odds amongst roughly Member States' criminal police delineate systems, which the Treaty rightly requires the European Union to respect. However, the best agency to address this legitimate line is to supply for an exception for those Member States in the relevant legislation .

While at that spot are to a greater extent than oftentimes than non practiced reasons, on grounds of subsidiarity together with such respects for national systems, for the European Union non to interfere amongst the basic principles of national sentencing systems, the instance of counterfeiting the euro is special. (So is the number of protection of the EU's fiscal interests, where the Commission has proposed to interfere amongst national rules on prescription for the get down time.) Any counterfeiting of the EU's unmarried currency necessarily impacts on all the Member US using it, equally good equally (less directly) the Member US which are required to usage it inwards future. The European Union legislature's choice to apply the regulation of ineffectiveness inwards this novel legislation is thence regrettable.

Barnard & Peers: chapter 25

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