REPORT on the proposal for a directive of the European Parliament and of the Council on combating fraud and counterfeiting of non-cash means of payment and replacing Council Framework Decision 2001/413/JHA

Text proposed by the Commission

Amendment

(3)  Council Framework Decision 2001/413/JHA⁴⁴ needs to be updated and complemented by further provisions on offences, penalties and cross-border cooperation.

(3)  Council Framework Decision 2001/413/JHA⁴⁴ needs to be updated and complemented in order to include further provisions on offences, in particular relating to computer-related fraud, penalties, prevention and assistance to victims and cross-border cooperation.

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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).

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).

Text proposed by the Commission

Amendment

(4)  Significant gaps and differences in Member States’ laws in the area of fraud and counterfeiting of non-cash means of payment may hamper the fight against this type of crime and other serious and organised crimes related to and enabled by it, and may complicate effective police and judicial cooperation in this area.

(4)  Significant gaps and differences in Member States’ laws in the area of fraud and counterfeiting of non-cash means of payment obstruct the prevention, detection and sanctioning of this type of crime and other serious and organised crimes related to and enabled by it, and complicate effective police and judicial cooperation in this area with a direct impact on citizens' security.

Text proposed by the Commission

Amendment

(6a)  The use of new types of payment instruments creates opportunities for consumers and businesses but also increases opportunities for fraud. Fraud is not only used to fund criminal groups, it also limits the development of the digital single market and makes citizens more reluctant to make online purchases.

Text proposed by the Commission

Amendment

(7)  Common definitions in this area are important to ensure a consistent approach in Member States’ application of this Directive. The definitions need to cover new types of payment instruments, such as electronic money and virtual currencies.

(7)  Common definitions in this area are important to ensure a consistent approach in Member States’ application of this Directive and to facilitate information exchange and cooperation between competent authorities. The definitions need to cover new types of payment instruments, such as electronic money and virtual currencies.

Text proposed by the Commission

Amendment

(7 a)  Fake invoices with which payment credentials can be abstracted should be considered as an attempt at unlawful appropriation as referred to in Article 4 of this Directive.

Text proposed by the Commission

Amendment

(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.

(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 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 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). The possession of a stolen or otherwise unlawfully appropriated, or of a counterfeited or falsified, payment instrument should be covered if the person possessing it knows at the time of receipt that such instrument is derived from criminal activity or from an act of participation in such an activity. 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.

Text proposed by the Commission

Amendment

(10)  The sanctions and penalties for fraud and counterfeiting of non-cash means of payment should be effective, proportionate and dissuasive throughout the Union.

(10)  The sanctions and penalties for fraud and counterfeiting of non-cash means of payment should be effective, proportionate and dissuasive throughout the Union in order to discourage fraud of this type and to prevent similar offences. This Directive does not prevent Member States from applying stricter rules and sanctions with regard to fraud and counterfeiting of non-cash means of payment.

Text proposed by the Commission

Amendment

(11)  It is appropriate to provide for more severe penalties where the crime is committed by a criminal organisation, as defined in Council Framework Decision 2008/841/JHA⁴⁵ , or where a crime is conducted on a large scale, thus involving extensive or considerable damage to the victims or an aggregate advantage for the offender of at least EUR 20 000.

(11)  It is appropriate to provide for more severe penalties where the crime is committed by a criminal organisation, as defined in Council Framework Decision 2008/841/JHA⁴⁵, or where a crime is conducted on a large scale, thus involving extensive or considerable damage to the victims. The fact that an offence involves a significant aggregate financial advantage or a high number of victims should be considered an aggravating circumstance.

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⁴⁵ Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime (OJ L 300, 11.11.2008, p. 42).

⁴⁵ Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime (OJ L 300, 11.11.2008, p. 42).

Text proposed by the Commission

Amendment

(12)  Jurisdictional rules should ensure that the offences laid down in this Directive are prosecuted effectively. 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 over offences committed on their territory, over offences committed by their nationals and over offences that cause damage in their territory.

(12)  Jurisdictional rules should ensure that the offences laid down in this Directive are prosecuted effectively and in accordance with 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 over offences committed on their territory, over offences committed by their nationals and over offences that cause damage in their territory. Where an offence falls within the jurisdiction of more than one Member State, the Member States concerned should cooperate with one another in order to decide which of them are to investigate the case, bearing in mind the principle of ne bis in idem. To that end, it should be possible for the Member States to have recourse to Eurojust in order to facilitate cooperation between their judicial authorities and coordination of their actions.

Text proposed by the Commission

Amendment

(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.

(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, adequate investigative tools 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 human and financial resources should be allocated to the competent authorities in order to properly investigate and prosecute the offences laid down in this Directive.

Text proposed by the Commission

Amendment

(15a)  The cross-border nature of the offences laid down in this Directive requires a strong coordinated response and cooperation within and between Member States. To that end, an efficient use of the available tools and resources for cooperation should be made, such as mutual recognition and legal assistance in relation to the offences covered by this Directive, irrespective of the threshold for penalties provided for those offences in national law.

Text proposed by the Commission

Amendment

(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 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.

(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 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.

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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).

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).

Text proposed by the Commission

Amendment

(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 the reports they are required to submit to the competent authority in their home Member State under Directive (EU) 2015/2366.

(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.

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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).

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).

Text proposed by the Commission

Amendment

(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 eight hours.

(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 two hours of receipt, at least indicating whether the request will be answered, and the form and estimated time of such an answer. In very urgent and serious cases, Member States should inform Europols European Cybercrime Centre.

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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).

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).

Text proposed by the Commission

Amendment

(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. 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.

(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 and should include the establishment of an effective and secure national online fraud-reporting system in order to facilitate the immediate reporting of crime. The use of standardised reporting templates at Union level should allow for better analysis of threats and should facilitate the work and cooperation of national competent authorities. The 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.

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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).

⁴⁹Regulation (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).

Text proposed by the Commission

Amendment

(19 a)  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 that phenomenon. Reporting obligations, information exchange and statistical reports are efficient ways to detect fraudulent activities, especially similar activities that involve small amounts of money when considered separately. It is also essential that relevant information on fraud and counterfeiting of non-cash means of payment be transmitted in a timely manner to the national financial intelligence units in order to enable further analysis and detection of criminal financial flows.

Text proposed by the Commission

Amendment

(20)  Fraud and counterfeiting of non-cash means of payment can result in serious economic and non-economic consequences for its victims. Where such fraud involves identity theft, its consequences are often aggravated because of reputational damage and serious emotional harm. Member States should adopt measures of assistance, support and protection aimed at mitigating these consequences.

(20)  Fraud and counterfeiting of non-cash means of payment can result in serious economic and non-economic consequences for its victims. Where such fraud involves, for example, identity theft, its consequences are often aggravated because of reputational and professional damage, damage to an individual’s credit rating as well as serious emotional harm. Member States should adopt measures of assistance, support and protection aimed at mitigating these consequences.

Text proposed by the Commission

Amendment

(20 a)  It often takes a considerable amount of time for victims to find out that they have suffered a loss from fraud and counterfeiting offences. During this time a spiral of interlinked crimes might develop, thereby aggravating the negative consequences for the victims.

Text proposed by the Commission

Amendment

(21)  Natural persons who are victims of fraud related to non-cash means of payment have rights conferred under Directive 2012/29/EU of the European Parliament and the Council⁵⁰. Member States should adopt measures of assistance and support to such victims which build on the measures required by Directive 2012/29/EU but respond more directly to the specific needs of victims of fraud related to identity theft. Such measures should include, in particular, specialised psychological support and advice on financial, practical and legal matters, as well as assistance in receiving available compensation. Specific information and advice on protection against the negative consequences of such crime should be offered to legal persons as well.

(21)  Natural persons who are victims of fraud related to non-cash means of payment have rights conferred under Directive 2012/29/EU of the European Parliament and the Council⁵⁰. Member States should adopt measures of assistance and support to such victims which build on the measures required by Directive 2012/29/EU but respond more directly to the specific needs of victims of fraud related to identity theft. Such measures should include, in particular, the provision of a list of dedicated institutions covering different aspects of identity-related crime and victim support, specialised psychological support and advice on financial, practical and legal matters, as well as assistance in receiving available compensation. Member States should also be able to set up a national single online information tool to facilitate access to assistance and support for victims. Specific information and advice on protection against the negative consequences of such crime should be offered to legal persons as well.

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⁵⁰ Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (OJ L 315, 14.11.2012, p. 57).

⁵⁰ Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (OJ L 315, 14.11.2012, p. 57).

Text proposed by the Commission

Amendment

(21 a)  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 it. 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 aid and the standard of living in the relevant Member State.

Text proposed by the Commission

Amendment

(23)  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.

(23)  Member States, assisted by the Commission, 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, for example, by means of information and awareness-raising campaigns, permanent online information tools with practical examples of fraudulent practices and research and education programmes.

Text proposed by the Commission

Amendment

(23 a)  In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission with regard to the development of a standardised Union reporting template as referred to in Article 14 and in accordance with Article 16 a. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council.

Text proposed by the Commission

Amendment

(24)  There is a need to collect comparable data on the offences laid down in this Directive. Relevant data should be made available to the competent specialised Union agencies and bodies, such as Europol, in line with their tasks and information needs. The aim would be to gain a more complete picture of the problem of fraud and counterfeiting of non-cash means of payment and issues relating to payment security at Union level, and so contribute to formulating a more effective response. Member States should make full use of Europol's mandate and capacity to provide assistance and support to relevant investigations, by submitting information on the offenders’ modus operandi to Europol for the purpose of conducting strategic analyses and threat assessments of fraud and counterfeiting of non-cash means of payment in accordance with Regulation (EU) 2016/794 of the European Parliament and of the Council⁵² . Providing information can help better understand present and future threats and assist the Council and the Commission in laying down strategic and operational priorities of the Union for fighting crime and in the ways of implementing those priorities.

(24)  There is a need to collect comparable data on the offences laid down in this Directive. Relevant data should be made available to the competent specialised Union agencies and bodies, such as Europol, and the Commission in line with their tasks and information needs. The aim would be to gain a more complete picture of the problem of fraud and counterfeiting of non-cash means of payment and issues relating to payment security at Union level, and so contribute to formulating a more effective response. Member States should make full use of Europol's mandate and capacity to provide assistance and support to relevant investigations, by submitting information on the offenders’ modus operandi to Europol for the purpose of conducting strategic analyses and threat assessments of fraud and counterfeiting of non-cash means of payment in accordance with Regulation (EU) 2016/794 of the European Parliament and of the Council⁵². Providing information can help better understand present and future threats and assist the Council and the Commission in laying down strategic and operational priorities of the Union for fighting crime and in the ways of implementing those priorities.

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⁵² Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA (OJ L 135, 24.5.2016, p. 53).

⁵² Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA (OJ L 135, 24.5.2016, p. 53).

Text proposed by the Commission

Amendment

(24a)  The prevention and combat of crime, whether organised or not, must be achieved through closer cooperation between police authorities and other competent authorities in the Member States, both directly and through Europol, with a particular focus on improving the exchange of information between authorities responsible for criminal prevention and investigation.

Text proposed by the Commission

Amendment

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.

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 facilitates the prevention of such offences, assists and supports victims and improves cooperation between judicial and other competent authorities.

Text proposed by the Commission

Amendment

Fraudulent use of payment instruments

Fraudulent use of non-cash payment instruments

Text proposed by the Commission

Amendment

Member States shall take the necessary measures to ensure that, when committed intentionally, the following are punishable as a criminal offence:

Member States shall take the necessary measures to ensure that the following are punishable as a criminal offence:

Text proposed by the Commission

Amendment

(a)  theft or other unlawful appropriation of a payment instrument;

(a)  theft or other unlawful appropriation of a payment instrument when committed intentionally;

Text proposed by the Commission

Amendment

(b)  counterfeiting or falsification of a payment instrument in order for it to be used fraudulently;

(b)  counterfeiting or falsification of a payment instrument, when committed intentionally, in order for it to be used fraudulently;

Text proposed by the Commission

Amendment

(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.

(c)  procurement for oneself or another, including import, export, sale and transport, distribution of a payment instrument which has been stolen or otherwise unlawfully appropriated or of a payment instrument counterfeited or falsified, when committed intentionally, in order for it to be used fraudulently;

Text proposed by the Commission

Amendment

(c a)  possession of a stolen or otherwise unlawfully appropriated, or of a counterfeited or falsified, payment instrument, knowing at the time of receipt that such instrument is derived from criminal activity or from an act of participation in such an activity.

Text proposed by the Commission

Amendment

Member States shall take the necessary measures to ensure that performing or causing 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:

Member States shall take the necessary measures to ensure that performing or having 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, or causing an unlawful loss of property for a third party, is punishable as a criminal offence, when committed intentionally by:

Text proposed by the Commission

Amendment

(ba)  directing or redirecting payment service users to imitation websites.

Text proposed by the Commission

Amendment

Member States shall take the necessary measures to ensure that, when committed intentionally with fraudulent purpose, the production, procurement for use, import, export, sale, transport, distribution or otherwise making available of a device or an instrument, computer data or any other means specifically designed or adapted for the purpose of committing any of the offences referred to in Article 4(a) and (b) or Article 5, is punishable as a criminal offence.

Member States shall take the necessary measures to ensure that the production, procurement for oneself or another, import, export, sale, transport, distribution or otherwise making available of a device or an instrument, computer data or any other means specifically designed or adapted for the purpose of committing any of the offences referred to in Article 4(a) and (b) or Article 5, is punishable as a criminal offence, when committed with the intention that these means be used to commit any of the said offences.

Text proposed by the Commission

Amendment

2.  Member States shall take the necessary measures to ensure that the attempt to commit an offence referred to in Articles 3 to 6 is punishable as a criminal offence.

2.  Member States shall take all the measures necessary to ensure that the attempt to commit an offence referred to in Articles 3 to 6 is punishable as a criminal offence.

Text proposed by the Commission

Amendment

2.  Member States shall take the necessary measures to ensure that the offences referred to in Articles 3, 4 and 5 are punishable by a maximum term of imprisonment of at least three years.

2.  Member States shall take the necessary measures to ensure that the offences referred to in Articles 3, 4 and 5 are punishable by a maximum term of imprisonment of at least four years.

Text proposed by the Commission

Amendment

3.  Member States shall take the necessary measures to ensure that the offences referred to in Article 6 are punishable by a maximum term of imprisonment of at least two years.

3.  Member States shall take the necessary measures to ensure that the offences referred to in Article 6 are punishable by a maximum term of imprisonment of at least three years.

Text proposed by the Commission

Amendment

4.  Member States shall take the necessary measures to ensure that offences referred to in Articles 3, 4 and 5 are punishable by a maximum term of imprisonment of at least five years if:

4.  Member States shall take the necessary measures to ensure that the following circumstances are regarded as aggravating circumstances in relation to the offences referred to in Articles 3, 4 and 5 and are punishable by a maximum term of imprisonment of at least five years if:

Text proposed by the Commission

Amendment

(a)  they are committed within the framework of a criminal organisation, as defined in Framework Decision 2008/841/JHA, irrespective of the penalty provided for in that Decision;

(a)  they are committed within the framework of a criminal organisation, as defined in Framework Decision 2008/841/JHA, irrespective of the penalty provided for in that Decision; or

Text proposed by the Commission

Amendment

(b)   they involve extensive or considerable damage or an aggregate advantage of at least EUR 20 000.

(b)   they involve extensive or considerable damage; or

Text proposed by the Commission

Amendment

(b a)  they have led to an aggregate advantage of considerable value.

Text proposed by the Commission

Amendment

Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 9(1) is subject to effective, proportionate and dissuasive sanctions, which shall include criminal or non-criminal fines and which may include other sanctions, such as:

Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 9(1) is subject to effective, proportionate and dissuasive sanctions, which shall include criminal or non-criminal fines or other sanctions, including:

Text proposed by the Commission

Amendment

(a a)  temporary or permanent exclusion from access to public funding, including tender procedures, grants and concessions, both at national and Union level;

Text proposed by the Commission

Amendment

(a)  the offence is committed in whole or in part in its territory;

(a)  the offence is committed in whole or in part in its territory; or

Text proposed by the Commission

Amendment

(b)  the offender is one of its nationals;

(b)  the offender is one of its nationals or a habitual resident; or

Text proposed by the Commission

Amendment

(b a)  the offence is committed for the benefit of a legal person established in its territory; or

Text proposed by the Commission

Amendment

(b b)  the offence is committed against one of its nationals or a person who is an habitual resident in its territory; or

Text proposed by the Commission

Amendment

(c)  the offence causes damage in its territory including damage resulting from the theft of the identity of a person.

(c)  the offence causes damage in its territory.

Text proposed by the Commission

Amendment

1 a.  A Member State shall inform the Commission and Eurojust if it decides to establish jurisdiction over an offence referred to in Articles 3 to 7 that has been committed outside its territory;

Text proposed by the Commission

Amendment

(a)  the offender commits the offence when physically present on its territory, whether or not the offence is committed using computers or an information system on its territory;

(a)  the offender commits the offence when physically present on its territory, whether or not the offence is committed using a computer or an information system on its territory;

Text proposed by the Commission

Amendment

(b)  the offence is committed using computers or an information system on its territory, whether or not the offender commits the offence when physically present on its territory.

(b)  the offence is committed using a computer or an information system on its territory, whether or not the offender commits the offence when physically present on its territory.

Text proposed by the Commission

Amendment

3.  A Member State shall inform the Commission if it decides to establish jurisdiction over an offence referred to in Articles 3 to 7 committed outside its territory, including where:

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(a)  the offender has his or her habitual residence in its territory;

(b)  the offence is committed for the benefit of a legal person established in its territory;

(c)  the offence is committed against one of its nationals or a person who is an habitual resident in its territory.

Text proposed by the Commission

Amendment

3 a.  Where an offence referred to in Articles 3 to 7 falls within the jurisdiction of more than one Member State, the Member States concerned shall cooperate with one another in order to decide which of them will prosecute the offender with the aim of centralising proceedings in a single Member State, bearing in mind the principle of ne bis in idem. Member States shall have recourse to Eurojust in cases of conflict of jurisdiction or other difficulties, in line with Article 12 of Framework Decision 2009/948/JHA.

Text proposed by the Commission

Amendment

Effective investigations

Effective investigations and cooperation

Text proposed by the Commission

Amendment

1.  Member States shall take the necessary measures to ensure that effective investigative tools, such as those which are used in organised crime or other serious crime cases, are available to persons, units or services responsible for investigating or prosecuting the offences referred to in Articles 3 to 7.

1.  Member States shall take the necessary measures to ensure that investigative tools, such as those which are used in countering organised crime or other serious crime cases, are effective, proportionate to the crime committed and available to persons, units or services responsible for investigating or prosecuting the offences referred to in Articles 3 to 7.

Text proposed by the Commission

Amendment

1 a.  Each Member State shall ensure that adequate human and financial resources are allocated and training sessions are provided in order to investigate and prosecute the offences referred to in Articles 3 to 7.

Text proposed by the Commission

Amendment

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.

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 those authorities are empowered to cooperate with other national authorities and their counterparts in other Member States.

Text proposed by the Commission

Amendment

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 eight 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.

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 two 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.

Text proposed by the Commission

Amendment

2.  Member States shall inform the Commission, Europol and Eurojust of their appointed point of contact referred to in paragraph 1. The Commission shall forward that information to the other Member States.

2.  Member States shall inform the Commission, Europol and Eurojust of their appointed point of contact referred to in paragraph 1 and update that information as necessary. The Commission shall forward that information to the other Member States.

Text proposed by the Commission

Amendment

2 a.  In very urgent and serious cases that affect two or more Member States, Member States shall inform Europol’s European Cybercrime Centre. Europol shall facilitate the setting-up of a rapid alert system identifying new practices of fraud.

Text proposed by the Commission

Amendment

2 b.  When dealing with data as referred to in this Article, competent authorities shall comply with applicable Union data protection rules.

Text proposed by the Commission

Amendment

1.  Member States shall take the necessary measures to ensure that appropriate reporting channels are made available in order to facilitate reporting of the offences referred to in Articles 3 to 7 to law enforcement and other competent national authorities without undue delay.

1.  Member States shall take the necessary measures to ensure that appropriate reporting channels, including via a secure national online fraud-reporting system, 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.

Text proposed by the Commission

Amendment

1 a.  In order to harmonise reporting practices within the Union, the Commission shall adopt an implementing act to establish a standardised Union reporting template that shall serve as a basis for Member States. This implementing act shall be adopted in accordance with the advisory procedure referred to in Article 16a(2).

Text proposed by the Commission

Amendment

2.  Member States shall take the necessary measures to encourage financial institutions and other legal persons operating in their territory to report without undue delay suspected fraud to law enforcement and other competent authorities, for the purpose of detecting, preventing, investigating or prosecuting offences referred to in Articles 3 to 7.

2.  Member States shall take the necessary measures to ensure that financial institutions 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.

Text proposed by the Commission

Amendment

2a.  Member States shall take the necessary measures to encourage other legal persons operating on their territory to report suspected fraud, without undue delay, 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.

Text proposed by the Commission

Amendment

1.  Member States shall ensure that natural and legal persons who have suffered a prejudice from offences referred to in Articles 3 to 7, committed by misusing personal data, are offered specific information and advice on how to protect themselves against the negative consequences of the offences, such as reputational damage.

1.  Member States shall ensure that natural and legal persons who have suffered prejudice from offences referred to in Articles 3 to 7, committed by misusing personal data, are offered specific information and advice on how to protect themselves against the negative consequences of the offences, such as reputational damage, damage to their credit rating and financial costs as well as about their rights, including the right to compensation for damage suffered as a result of the offence.

Text proposed by the Commission

Amendment

1 a.  Member States shall ensure that natural and legal persons who have suffered prejudice from offences referred to in Articles 3 to 7, committed by misusing personal data, are provided with a list of dedicated institutions that deal with different aspects of identity-related crime and support.

Text proposed by the Commission

Amendment

1 b.  Member States are encouraged to set up national single online information tools to facilitate access to assistance and support for natural or legal persons who have suffered prejudice from offences referred to in Articles 3 to 7, committed by misusing personal data.

Text proposed by the Commission

Amendment

1 c.  Member States shall ensure that natural persons who have suffered a prejudice from offences referred to in Articles 3 to 7, committed by misusing personal data, are offered free legal aid, at least those who lack sufficient resources to pay for legal aid. Member States may apply a means test to determine whether natural persons have the right to free legal aid.

Text proposed by the Commission

Amendment

2.  Member States shall ensure that legal persons that are victims of offences referred to in Articles 3 to 7 of this Directive are, without undue delay after their first contact with a competent authority, offered information about:

2.  Member States shall ensure that natural and legal persons that are victims of offences referred to in Articles 3 to 7 of this Directive are, without undue delay after their first contact with a competent authority, offered information about:

Text proposed by the Commission

Amendment

(aa)  the right of access to information about the case;

Text proposed by the Commission

Amendment

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.

1.  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 and fraud using computer and information systems in particular, raising awareness and reducing the risk of becoming a victim of fraud, in particular for vulnerable persons, such as elderly or young persons. The Commission shall assist Member States in regularly conducting such campaigns. Member States shall ensure that sufficient funding is made available for such campaigns.

Text proposed by the Commission

Amendment

1a.  Member States shall develop and keep up to date, as part of the information campaigns referred to in paragraph 1, a permanent online information tool with practical examples of fraudulent practices as referred to in Articles 3 to 7 in a format that is easy to understand. This tool may be linked to or be part of the single online information tool referred to in Article 15(1b).

Text proposed by the Commission

Amendment

Article 16 a

Committee procedure

1.   The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.   Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.

Text proposed by the Commission

Amendment

2.  Member States shall ensure that a system is in place for the recording, production and provision of statistical data measuring the reporting, investigative and judicial phases concerning the offences referred to in Articles 3 to 7.

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.

Text proposed by the Commission

Amendment

3.  The 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.

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, the number of persons involved in the fraud and the extent of the damage caused, data on the functioning of the reporting, investigative and judicial phases concerning these offences.

Text proposed by the Commission

Amendment

1.  Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [24 months after entry into force]. They shall immediately inform the Commission thereof.

1.  Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ... [12 months after entry into force]. They shall immediately inform the Commission thereof.

Text proposed by the Commission

Amendment

2.  The Commission shall, by [96 months after entry into force], carry out an evaluation of this Directive on combating fraud and counterfeiting of non-cash means of payment and submit a report to the European Parliament and to the Council.

2.  The Commission shall by ... [48 months after entry into force], 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. Member States shall provide the Commission with necessary information for the preparation of the report.