Activities of Petr JEŽEK related to 2017/0226(COD)
Shadow reports (1)
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 PDF (705 KB) DOC (111 KB)
Amendments (18)
Amendment 39 #
(7) Common definitions in this area are important to ensure a consistent approach in Member States’ application of this Directive and 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.
Amendment 42 #
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). The intentional nature of the offence may be inferred from objective, factual circumstances. 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 45 #
Proposal for a directive
Recital 10
Recital 10
(10) The sanctions and penalties for fraud and counterfeiting of non-cash means of payment should be effective, proportionate and dissuasive throughout the Union. 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.
Amendment 52 #
Proposal for a directive
Recital 12
Recital 12
(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. When an offence falls within the jurisdiction of more than one Member State, the Member States concerned should cooperate in order to decide which of them are to investigate the case. To this end, it should be possible for the Member States to have recourse to Eurojust in order to facilitate cooperation between their judicial authorities and the coordination of their actions.
Amendment 57 #
Proposal for a directive
Recital 15 a (new)
Recital 15 a (new)
(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 foreseen for these offences in national law.
Amendment 63 #
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 eighttwo 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 64 #
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 and should include the establishment of an effective and secure national online fraud-reporting system. The use of standardised reporting templates at Union level would allow for better analysis of threats and would facilitate the work and cooperation of national competent 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. _________________ 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 79 #
Proposal for a directive
Article 3 – title
Article 3 – title
Fraudulent use of non-cash payment instruments (This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout)
Amendment 89 #
Proposal for a directive
Article 4 – paragraph 1 – point c
Article 4 – paragraph 1 – point c
(c) possession, procurement for useoneself or another, 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 108 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
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 threefour years.
Amendment 109 #
Proposal for a directive
Article 8 – paragraph 3
Article 8 – paragraph 3
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 twohree years.
Amendment 137 #
Proposal for a directive
Article 11 – paragraph 3 a (new)
Article 11 – paragraph 3 a (new)
3a. 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 in order to decide which of them will prosecute the offender with the aim of centralising proceedings in a single Member State. Member States may have recourse to Eurojust in order to facilitate cooperation between their judicial authorities and the coordination of their actions.
Amendment 143 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
1. Member States shall take the necessary measures to ensure that effective investigative tools, such as those which are used in countering 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.
Amendment 149 #
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 eighttwo 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 155 #
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 system, 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.
Amendment 156 #
Proposal for a directive
Article 14 – paragraph 1 a (new)
Article 14 – paragraph 1 a (new)
1a. In order to harmonise reporting practices within the Union, the Commission shall develop a standardised Union reporting template that shall serve as a basis for Member States.
Amendment 161 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
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, and about their rights, including the possible financial compensation they are entitled to.
Amendment 177 #
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.