Criminal penalties for currency counterfeiting

KEY POINTS

The directive applies to the protection of all legally authorised currency, including euro banknotes and coins, and replaces Council Framework Decision 2000/383/JHA for the European Union (EU) Member States bound by it.

Criminal offences

Member States must ensure that the following conduct is punishable as a criminal offence when committed intentionally:

• any fraudulent making or altering of currency, by whatever means;
• the fraudulent uttering of counterfeit currency;
• the import, export, transport, receiving or obtaining of counterfeit currency with a view to uttering it and with knowledge that it is counterfeit;
• the fraudulent making, receiving, obtaining or possession of counterfeiting instruments and components, including but not limited to:
  • instruments, articles, computer programs and data adapted for counterfeiting or altering currency,
  • security features, such as holograms, watermarks or other components of currency serving to protect against counterfeiting.

These offences also apply to banknotes or coins manufactured by use of legal facilities or materials, in violation of the rights or conditions under which competent authorities may issue such banknotes or coins. They further apply to banknotes and coins not yet issued but designated for circulation as legal tender.

Incitement, aiding and abetting, and attempt

Member States must also ensure that the following conduct is punishable as a criminal offence:

• inciting or aiding and abetting any of the offences listed above;
• attempting to commit the offences of fraudulent making or altering of currency, along with the uttering, importing, exporting, transporting, receiving or obtaining of counterfeit currency.

Sanctions for natural persons

All counterfeiting offences must be punishable by effective, proportionate and dissuasive criminal sanctions. The directive sets the following minimum levels of sanctions:

• offences relating to counterfeiting instruments are punishable by a maximum sanction providing for imprisonment;
• fraudulent making or altering of currency is punishable by a maximum term of imprisonment of at least eight years;
• the uttering, obtaining and trafficking of counterfeit currency is punishable by a maximum term of imprisonment of at least five years;
• for knowingly passing on counterfeit currency received in good faith, Member States may provide for effective sanctions, including fines and imprisonment.

Liability and sanctions for legal persons

Legal persons can be held liable for counterfeiting offences committed for their benefit, and face a range of criminal or non-criminal sanctions. In particular:

• legal persons are liable where the offence is committed by a person holding a leading position (power of representation, decision-making authority or control);
• they are also liable where lack of supervision or control by such a person made the offence possible;
• liability of legal persons does not exclude criminal proceedings against the natural persons involved;
• sanctions include criminal or non-criminal fines and may also include:
  • exclusion from entitlement to public benefits or aid,
  • temporary or permanent disqualification from commercial activities,
  • being placed under judicial supervision,
  • judicial winding-up,
  • temporary or permanent closure of establishments used for committing the offence.

Jurisdiction

Member States must establish jurisdiction over counterfeiting offences to ensure effective prosecution. In particular:

• each Member State must establish jurisdiction over offences committed on its territory or by its nationals;
• Member States whose currency is the euro must also establish jurisdiction over offences related to the counterfeiting of the euro committed outside their territory, at least where the offender is in their territory and is not extradited, or where counterfeit euro notes or coins have been detected in their territory;
• for prosecution of offences related to the production of counterfeit euro banknotes or coins, jurisdiction is not subordinated to dual criminality (i.e. the condition that the acts are a criminal offence at the place where they were committed).

Analysis and detection of counterfeits

During criminal proceedings, the competent authorities must ensure that suspected counterfeit euro notes and coins can be examined for analysis, identification and detection purposes. This is crucial in enabling the tracing of criminal networks and facilitating a coherent enforcement strategy. In particular:

• the examination by the relevant National Analysis Centre and the relevant Coin National Analysis Centre must be permitted without delay;
• competent authorities must transmit the necessary samples to the relevant National Analysis Centre and the relevant Coin National Analysis Centre no later than once a final decision concerning the criminal proceedings has been reached.