Theft & Fraud Procedures
CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT 2001
PART 7
Investigation of Offences
Search warrants.
48.—(1) This section applies to an offence under any provision of this Act for which a person of full age and capacity and not previously convicted may be punished by imprisonment for a term of five years or by a more severe penalty and to an attempt to commit any such offence.
F37[(2) If a Judge of the District Court is satisfied by information on oath of a member of the Garda Síochána that there are reasonable grounds for suspecting that evidence of, or relating to the commission of, an offence to which this section applies is to be found in any place, the judge may issue a warrant for the search of that place and any person found there.]
(3) A warrant under this section shall be expressed and shall operate to authorise a named member of the Garda Síochána, alone or accompanied by such other persons as may be necessary—
(a) to enter, within 7 days from the date of issuing of the warrant (if necessary by the use of reasonable force), the place named in the warrant,
(b) to search it and any persons found there,
(c) to examine, seize and retain any thing found there, or in the possession of a person present there at the time of the search, which the member reasonably believes to be evidence of or relating to the commission of an offence to which this section applies, and
(d) to take any other steps which may appear to the member to be necessary for preserving any such thing and preventing interference with it.
(4) The authority conferred by subsection (3)(c) to seize and retain any thing includes, in the case of a document or record, authority—
(a) to make and retain a copy of the document or record, and
(b) where necessary, to seize and, for as long as necessary, retain any computer or other storage medium in which any record is kept.
(5) A member of the Garda Síochána acting under the authority of a warrant under this section may—
(a) operate any computer at the place which is being searched or cause any such computer to be operated by a person accompanying the member for that purpose, and
(b) require any person at that place who appears to the member to have lawful access to the information in any such computer—
(i) to give to the member any password necessary to operate it,
(ii) otherwise to enable the member to examine the information accessible by the computer in a form in which the information is visible and legible, or
(iii) to produce the information in a form in which it can be removed and in which it is, or can be made, visible and legible.
(6) Where a member of the Garda Síochána has entered premises in the execution of a warrant issued under this section, he may seize and retain any material, other than items subject to legal privilege, which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the warrant was issued.
(7) The power to issue a warrant under this section is in addition to and not in substitution for any other power to issue a warrant for the search of any place or person.
(8) In this section, unless the context otherwise requires—
“commission”, in relation to an offence, includes an attempt to commit the offence;
“computer at the place which is being searched” includes any other computer, whether at that place or at any other place, which is lawfully accessible by means of that computer;
“place” includes a dwelling;
“thing” includes an instrument (within the meaning of Part 4), a copy of such instrument, a document or a record.
Annotations
Amendments:
F37
Substituted (1.08.2006) by Criminal Justice Act 2006 (26/2006), s. 192(1)(a), S.I. No. 390 of 2006, subject to transitional provision in subs. (2).
Editorial Notes:
E39
Offence under section designated a relevant offence for purposes of Criminal Justice Act 2011 (9.08.2011) by Criminal Justice Act 2011 (22/2011), s. 3 and sch. 1 para. 23, S.I. No. 411 of 2011.
Obstruction of Garda acting on warrant.
49.—(1) A person who—
(a) obstructs or attempts to obstruct a member of the Garda Síochána acting under the authority of a warrant issued under this Part, or
(b) is found in or at the place named in the warrant by a member of the Garda Síochána so acting and fails or refuses to give the member his or her name and address when required by the member to do so or gives the member a name and address that is false or misleading, or
(c) fails without lawful authority or excuse to comply with a requirement under paragraph (b) or section 48(5)(b),
is guilty of an offence and is liable on summary conviction to a fine not exceeding £500 or imprisonment for a term not exceeding 6 months or both.
(2) A member of the Garda Síochána may arrest without warrant any person who is committing an offence under this section or whom the member suspects, with reasonable cause, of having done so.
Annotations:
Editorial Notes:
E40
A fine of £500 converted (1.01.1999) to €634.87. This translates into a class D fine not exceeding €1,000 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 7(2) and table ref. no. 1, S.I. No. 662 of 2010.
Forfeiture of seized property.
50.—(1) This section applies to any thing which has been seized by a member of the Garda Síochána (whether the seizure was effected by virtue of a warrant under section 48 or otherwise) and which the member suspects to be—
(a) any thing used (whether before or after the commencement of this section), or intended to be used, for the making of any false instrument, or any copy of a false instrument, in contravention of section 25 or 27 respectively,
(b) any false instrument or any copy of a false instrument used (whether before or after the commencement of this section), or intended to be so used, in contravention of section 26 or 28 respectively,
(c) any thing the custody or control of which, without lawful authority or excuse, is an offence under section 29,
(d) any thing which is a counterfeit of a currency note or coin,
(e) any thing used, whether before or after the commencement of this section, or intended to be used, for the making of any such counterfeit.
(2) A member of the Garda Síochána may, at any time after the seizure of any thing to which this section applies, apply to the judge of the District Court for the time being assigned to the district in which the seizure was effected for an order under this subsection with respect to it; and the judge may, if satisfied both that the thing is one to which this section applies and that it is in the public interest to do so, subject to subsection (4), make such order as the judge thinks fit for its forfeiture and subsequent destruction or disposal.
(3) Subject to subsection (4), the court by or before which a person is convicted of an offence under Part 4 or 5 may order any thing shown to the satisfaction of the court to relate to the offence to be forfeited and either destroyed or dealt with in such other manner as the court may order.
(4) The court shall not order any thing to be forfeited under subsection (3) or (4) where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to the person to show cause why the order should not be made.
Concealing facts disclosed by documents.
51.—(1) Any person who—
(a) knows or suspects that an investigation by the Garda Síochána into an offence under this Act is being or is likely to be carried out, and
(b) falsifies, conceals, destroys or otherwise disposes of a document or record which he or she knows or suspects is or would be relevant to the investigation or causes or permits its falsification, concealment, destruction or disposal,
is guilty of an offence.
(2) Where a person—
(a) falsifies, conceals, destroys or otherwise disposes of a document, or
(b) causes or permits its falsification, concealment, destruction or disposal,
in such circumstances that it is reasonable to conclude that the person knew or suspected—
(i) that an investigation by the Garda Síochána into an offence under this Act was being or was likely to be carried out, and
(ii) that the document was or would be relevant to the investigation,
he or she shall be taken for the purposes of this section to have so known or suspected, unless the court or the jury, as the case may be, is satisfied having regard to all the evidence that there is a reasonable doubt as to whether he or she so knew or suspected.
(3) A person guilty of an offence under this section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both.
Annotations:
Modifications (not altering text):
C1
Application of section affected (9.08.2011) by Criminal Justice Act 2011 (22/2011), s. 17(4), S.I. No. 411 of 2011.
Concealing facts disclosed by documents.
17.— …
(4) This section shall not affect the operation of section 51 of the Criminal Justice (Theft and Fraud Offences) Act 2001 insofar as that section applies to offences that are relevant offences.
Order to produce evidential material.
52.—(1) This section applies to any offence under this Act which is punishable by imprisonment for a term of five years or by a more severe penalty.
F38[(2) If a Judge of the District Court is satisfied by information on oath of a member of the Garda Síochána that—
(a) the Garda Síochána are investigating an offence to which this section applies,
(b) a person has possession or control of particular material or material of a particular description, and
(c) there are reasonable grounds for suspecting that the material constitutes evidence of or relating to the commission of the offence,
the judge may order the person to—
(i) produce the material to a member of the Garda Síochána for the member to take away, or
(ii) give such a member access to it,
either immediately or within such period as the order may specify.]
(3) Where the material consists of or includes information contained in a computer, the order shall have effect as an order to produce the information, or to give access to it, in a form in which it is visible and legible and in which it can be taken away.
(4) An order under this section—
(a) in so far as it may empower a member of the Garda Síochána to take away a document, or to be given access to it, shall also have effect as an order empowering the member to take away a copy of the document (and for that purpose the member may, if necessary, make a copy of the document),
(b) shall not confer any right to production of, or access to, any document subject to legal privilege, and
(c) shall have effect notwithstanding any other obligation as to secrecy or other restriction on disclosure of information imposed by statute or otherwise.
(5) Any material taken away by a member of the Garda Síochána, under this section may be retained by the member for use as evidence in any criminal proceedings.
(6) (a) Information contained in a document which was produced to a member of the Garda Síochána, or to which such a member was given access, in accordance with an order under this section shall be admissible in any criminal proceedings as evidence of any fact therein of which direct oral evidence would be admissible unless the information—
(i) is privileged from disclosure in such proceedings,
(ii) was supplied by a person who would not be compellable to give evidence at the instance of the prosecution,
(iii) was compiled for the purposes or in contemplation of any—
(I) criminal investigation,
(II) investigation or inquiry carried out pursuant to or under any enactment,
(III) civil or criminal proceedings, or
(IV) proceedings of a disciplinary nature,
or unless the requirements of the provisions mentioned in paragraph (b) are not complied with.
(b) References in sections 7 (notice of documentary evidence to be served on accused), 8 (admission and weight of documentary evidence) and 9 (admissibility of evidence as to credibility of supplier of information) of the Criminal Evidence Act, 1992, to a document or information contained in it shall be construed as including references to a document mentioned in paragraph (a) and the information contained in it, and those provisions shall have effect accordingly with any necessary modifications.
(c) The Criminal Procedure Act, 1967, is amended both in section 6(1)(e) (as amended by section 10 of the Criminal Evidence Act, 1992) and in section 11 (as so amended) by the insertion, after “1992”, of “or section 52(6)(b) of the Criminal Justice (Theft and Fraud Offences) Act, 2001,”.
(7) A judge of the District Court may, on the application of any person to whom an order under this section relates or a member of the Garda Síochána, vary or discharge the order.
(8) A person who without reasonable excuse fails or refuses to comply with an order under this section is guilty of an offence and liable on summary conviction to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both.
Annotations
Amendments:
F38
Substituted (1.08.2006) by Criminal Justice Act 2006 (26/2006), s. 192(1)(b), S.I. No. 390 of 2006, subject to transitional provision in subs. (2).
Editorial Notes:
E41
A fine of £1,500 converted (1.01.1999) to €1,904.61. This translates into a class C fine, not greater than €2,500, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(2) and table ref. no. 1, S.I. No. 662 of 2010.
PART 8
Trial of Offences
Summary trial of indictable offences.
53.—(1) The District Court may try summarily a person charged with an indictable offence under this Act if—
(a) the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily,
(b) the accused, on being informed by the Court of his or her right to be tried with a jury, does not object to being tried summarily, and
(c) the Director of Public Prosecutions consents to the accused being tried summarily for the offence.
(2) On conviction by the District Court for an indictable offence tried summarily under subsection (1) the accused shall be liable to a F39[class A fine within the meaning of Part 2 of the Fines Act 2010] or imprisonment for a term not exceeding 12 months or both such fine and imprisonment.
Annotations
Amendments:
F39
Substituted (4.01.2011) by Fines Act 2010 (8/2010), s. 10(3), S.I. No. 662 of 2010. A class A fine means a fine not greater than €5,000 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 4(1), S.I. No. 662 of 2010.
Trial procedure.
54.—(1) In any proceedings for an offence or attempted offence under any of sections 6 and 7 and sections 9 to 11 it shall not be necessary to prove an intention dishonestly to cause a loss to, or make a gain at the expense of, a particular person, and it shall be sufficient to prove that the accused did the act charged dishonestly with the intention of causing such a loss or making such a gain.
(2) Any number of persons may be charged in one indictment, with reference to the same theft, with having at different times or at the same time handled or possessed all or any of the stolen property, and the persons so charged may be tried together.
(3) Any person who—
(a) is a member of a partnership or is one of two or more beneficial owners of any property, and
(b) steals any property of or belonging to the partnership or such beneficial owners,
is liable to be dealt with, tried and punished as if he or she had not been or was not a member of the partnership or one of such beneficial owners.
(4) If on the trial of a person for stealing any property it appears that the property alleged to have been stolen at one time was taken at different times, the separate takings may, unless the trial judge directs otherwise, be tried together, to a number not exceeding 3, provided that not more than 6 months elapsed between the first and the last of the takings.
(5) Charges of stealing, handling or possessing any property or any part thereof may be included in separate counts of the same indictment and such counts may be tried together.
(6) Any person or persons charged in separate counts of the same indictment with stealing any property or any part thereof may be severally found guilty of stealing, handling or possessing the property or any part thereof.
(7) On the trial of two or more persons indicted for jointly handling or possessing any stolen property the court or jury, as the case may be, may find any of the accused guilty if satisfied that he or she handled or possessed all or any part of such property, whether or not he or she did so jointly with the other accused or any of them.
F40[
Consecutive sentencing for burglary of dwelling
54A.—(1) Subject to this section, where a person—
(a) is convicted of a relevant offence and is being sentenced to a term of imprisonment in respect of that offence where that offence was committed—
(i) in a dwelling, and
(ii) after he or she has attained the age of 18 years,
(b) has a conviction for a relevant offence (other than the relevant offence referred to in paragraph (a)) whether or not any sentence (whether of imprisonment or otherwise) was imposed in respect of that conviction and where that offence was committed—
(i) in a dwelling,
(ii) in the period of 5 years immediately prior to the commission of the relevant offence referred to in paragraph (a), and
(iii) after he or she attained the age of 18 years,
and
(c) has a conviction for a relevant offence and was sentenced to a term of imprisonment in respect of that conviction, where that relevant offence was committed by the person—
(i) in a dwelling,
(ii) within a period commencing 6 months before and ending 6 months after the commission of the relevant offence referred to in paragraph (a), and
(iii) after he or she attained the age of 18 years,
any sentence of imprisonment imposed on the person for the relevant offence referred to in paragraph (a) shall be consecutive on the sentence referred to in paragraph (c) or, if a sentence of imprisonment has been imposed in respect of a relevant offence referred to in paragraphs (b) and (c), the last of those sentences due to expire.
(2) Where, in relation to a person referred to in subsection (1), a relevant offence committed by the person would come within paragraphs (b) and (c) of that subsection, then, that relevant offence may be considered for the purpose of satisfying either paragraph (b) or (c) of that subsection but not both.
(3) Subsection (1) applies to a person in respect of a relevant offence referred to in paragraph (a) of that subsection only if that relevant offence is committed after the coming into operation of section 2 of the Criminal Justice (Burglary of Dwellings) Act 2015 and that subsection shall apply to the person whether the other relevant offences referred to in paragraphs (b) and (c) of that subsection were committed before or after such coming into operation.
(4) Where two or more consecutive sentences required by subsection (1) are imposed by the District Court, the aggregate term of imprisonment in respect of those consecutive sentences shall not exceed 2 years.
(5) A reference in paragraphs (b) and (c) of subsection (1) to a conviction includes a reference to a conviction for a relevant offence which is the subject of an appeal (which has neither been determined nor withdrawn).
(6) In this section—
“dwelling” includes—
(a) a building or structure (whether temporary or not) which is constructed or adapted for use as a dwelling and is being so used,
(b) a vehicle or vessel (whether mobile or not) which is constructed or adapted for use as a dwelling and is being so used, or
(c) a part of a dwelling;
“relevant offence” means an offence under section 12 or 13.]
Annotations
Amendments:
F40
Inserted (17.01.2016) by Criminal Justice (Burglary of Dwellings) Act 2015 (56/2015), s. 2, S.I. No. 15 of 2016.
Alternative verdicts.
55.—(1) If, on the trial of a person for theft or for unlawfully obtaining property otherwise, it is proved that the person handled or possessed the property in such circumstances as to constitute an offence under section 17 or 18, he or she may be convicted of that offence.
(2) If, on the trial of a person for an offence under section 17 or 18 of handling or possessing stolen or otherwise unlawfully obtained property, it is proved that the person stole or otherwise unlawfully obtained the property, he or she may be convicted of the theft of the property or of the offence consisting of unlawfully obtaining the property.
Orders for restitution.
56.—(1) Where property has been stolen and either—
(a) a person is convicted of an offence with reference to the theft (whether or not the stealing is the essential ingredient of the offence), or
(b) a person is convicted of any other offence but the first-mentioned offence is taken into consideration in determining his or her sentence,
the court by or before which the person is convicted may on the conviction (whether or not the passing of sentence is in other respects deferred)—
(i) order anyone having possession or control of the property to restore it to any person entitled to recover it from the convicted person,
(ii) on the application of a person entitled to recover from the convicted person any other property directly or indirectly representing the first-mentioned property (as being the proceeds of any disposal or realisation of the whole or part of it or of property so representing it), order that other property to be delivered or transferred to the applicant, or
(iii) order that a sum not exceeding the value of the first-mentioned property shall be paid, out of any money of the convicted person which was taken out of his or her possession when arrested, to any person who, if that property were in the possession of the convicted person, would be entitled to recover it from him or her.
(2) Where the court has power on a person’s conviction to make an order against him or her under both paragraph (ii) and paragraph (iii) of subsection (1) with reference to the stealing of the same property, the court may make orders under both paragraphs, if the person in whose favour the orders are made does not thereby recover more than the value of that property.
(3) Where—
(a) the court makes an order under subsection (1)(i) for the restoration of any property, and
(b) it appears to the court that the convicted person has sold the property to a person acting in good faith or has borrowed money on the security of it from a person so acting,
then, on the application of the purchaser or lender the court may order that there shall be paid to the applicant, out of any money of the convicted person which was taken out of his or her possession when arrested, a sum not exceeding the amount paid for the purchase by the applicant or, as the case may be, the amount owed to the applicant in respect of the loan.
(4) (a) The court shall not exercise the powers conferred by this section unless in its opinion the relevant facts sufficiently appear from evidence given at the trial or the available documents, together with admissions made by or on behalf of any person in connection with any proposed exercise of the powers.
(b) In paragraph (a) “available documents” means—
(i) any written statements or admissions which were made for use, and would have been admissible in evidence, at the trial,
(ii) any depositions taken in any proceedings before the trial, and
(iii) any written statements or admissions used as evidence at the trial or in any such proceedings.
(5) The provisions of section 20 in relation to property which has been stolen shall have effect also in relation to the property referred to in this section.
(6) This section is without prejudice to the Police (Property) Act, 1897 (disposal of property in the possession of the Garda Síochána).
Annotations:
Modifications (not altering text):
C2
Application of subs. (1)(i) extended (1.09.2008) by Criminal Justice (Mutual Assistance) Act 2008 (7/2008), s. 84(1), S.I. No. 338 of 2008.
Restitution of stolen property from designated state.
84.— (1) An order under paragraph (i) of section 56 (orders for restitution) of the Criminal Justice (Theft and Fraud Offences) Act 2001 may be made by the court by or before which a person is convicted in relation to property in a designated state.
…
Provision of information to juries.
57.—(1) In a trial on indictment of an offence under this Act, the trial judge may order that copies of any or all of the following documents shall be given to the jury in any form that the judge considers appropriate:
(a) any document admitted in evidence at the trial,
(b) the transcript of the opening speeches of counsel,
(c) any charts, diagrams, graphics, schedules or agreed summaries of evidence produced at the trial,
(d) the transcript of the whole or any part of the evidence given at the trial,
(e) the transcript of the closing speeches of counsel,
(f) the transcript of the trial judge’s charge to the jury,
(g) any other document that in the opinion of the trial judge would be of assistance to the jury in its deliberations including, where appropriate, an affidavit by an accountant summarising, in a form which is likely to be comprehended by the jury, any transactions by the accused or other persons which are relevant to the offence.
(2) If the prosecutor proposes to apply to the trial judge for an order that a document mentioned in subsection (1)(g) shall be given to the jury, the prosecutor shall give a copy of the document to the accused in advance of the trial and, on the hearing of the application, the trial judge shall take into account any representations made by or on behalf of the accused in relation to it.
(3) Where the trial judge has made an order that an affidavit mentioned in subsection (1)(g) shall be given to the jury, the accountant concerned—
(a) shall be summoned by the prosecutor to attend at the trial as an expert witness, and
(b) may be required by the trial judge, in an appropriate case, to give evidence in regard to any relevant accounting procedures or principles.
PART 9
Miscellaneous
Liability for offences by bodies corporate and unincorporated.
58.—(1) Where—
(a) an offence under F41[this Act F42[(other than Part 5 or 6)]] has been committed by a body corporate, and
(b) the offence is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, a person who was either—
(i) a director, manager, secretary or other officer of the body corporate, or
(ii) a person purporting to act in any such capacity,
that person, as well as the body corporate, is guilty of an offence and liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with the member’s functions of management as if he or she were a director or manager of the body corporate.
(3) The foregoing provisions shall apply, with the necessary modifications, in relation to offences under this Act committed by an unincorporated body.
Annotations:
Amendments:
F41
Substituted (14.04.2021) by Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021 (2/2021), s. 7, S.I. No. 167 of 2021.
F42
Substituted (3.08.2021) by Counterfeiting Act 2021 (16/2021), s. 11, S.I. No. 404 of 2021.
Reporting of offences.
59.—(1) In this section—
“firm” means a partnership, a corporate or unincorporated body or a self-employed individual;
“relevant person” means a person—
(a) who audits the accounts of a firm, or
(b) who otherwise with a view to reward assists or advises a firm in the preparation or delivery of any information, or of any declaration, return, account or other document, which the person knows will be, or is likely to be, used for the purpose of keeping or auditing the accounts of the firm,
but does not include an employee of a firm who—
(i) in that capacity so assists or advises the firm, and
(ii) whose income from so doing consists solely of emoluments chargeable to income tax under Schedule E, as defined in section 19 of the Taxes Consolidation Act, 1997.
(2) Where the accounts of a firm, or as the case may be any information or document mentioned in subsection (1)(b), indicate that—
(a) an offence under this Act (other than sections 8, 12 to 15, 49(1) and 52(8)) may have been committed by the firm concerned, or
(b) such an offence may have been committed in relation to its affairs by a partner in the firm or, in the case of a corporate or unincorporated body, by a director, manager, secretary or other employee thereof, or by the self-employed individual concerned,
the relevant person shall, notwithstanding any professional obligations of privilege or confidentiality, report that fact to a member of the Garda Síochána.
(3) A disclosure in a report made in good faith by a relevant person to a member of the Garda Síochána under subsection (2) shall not be treated as a breach of any restriction imposed by statute or otherwise or involve the person in liability of any kind.
(4) A person who fails, without reasonable excuse, to comply with the duty imposed by subsection (2) is guilty of an offence and is liable on summary conviction to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both.
Evidence in proceedings.
60.—(1) For the purposes of any provision of this Act relating to specified conduct outside the State—
(a) a document purporting to be signed by a lawyer practising in the state or a territorial unit within it where the conduct is alleged to have occurred and stating that the conduct is an offence under the law of that state or territorial unit, and
(b) a document purporting to be a translation of a document mentioned in paragraph (a) and to be certified as correct by a person appearing to be competent to so certify,
shall be admissible in any proceedings, without further proof, as evidence of the matters mentioned in those documents, unless the contrary is shown.
(2) For the purposes of section 45 a document purporting to be signed by an officer of the Department of Foreign Affairs and stating that a passport was issued by the Department to a specified person on a specified date and that, to the best of the officer’s knowledge and belief, the person has not ceased to be an Irish citizen shall be admissible in any proceedings, without further proof, as evidence that the person was an Irish citizen on the date on which the offence under that section with which the person is charged was committed, unless the contrary is shown.
Jurisdiction of District Court in certain proceedings.
61.—For the purposes of the exercise of jurisdiction by a judge of the District Court in proceedings for an offence under this Act committed on a vessel or hovercraft or on an installation in the F43[territorial sea or in a designated area (within the meaning of the Maritime Jurisdiction Act 2021)] the offence may be treated as having been committed in any place in the State.
Annotations:
Amendments:
F43
Substituted (22.11.2021) by Maritime Jurisdiction Act 2021 (28/2021), s. 20(3) and sch. 2 item 24, S.I. No. 601 of 2021.
Amendment of section 9 of Married Women’s Status Act, 1957.
62.—Section 9 of the Married Women’s Status Act, 1957, is hereby amended by the substitution for subsection (3) of the following subsection:
“(3) No criminal proceedings referred to in subsection (1) or (2) shall be taken by a spouse against the other spouse except by or with the consent of the Director of Public Prosecutions.”.
Amendment of Defence Act, 1954.
63.—The Defence Act, 1954, is hereby amended by the substitution for section 156 (as substituted by the Larceny Act, 1990) of the following section:
“156.—(1) Every person subject to military law who—
(a) steals or otherwise unlawfully obtains any property belonging to a person subject to military law or any public service property or service property, or
(b) handles or possesses (within the meaning of section 17 or 18 of the Criminal Justice (Theft and Fraud Offences) Act, 2001) any such property,
is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer imprisonment for any term not exceeding two years or any less punishment awardable by a court martial.
(2) The said sections 17 and 18 shall apply to the offences of handling and possessing under subsection (1)(b) of this section as they apply to the offences of handling and possessing stolen or otherwise unlawfully obtained property.”.
Amendment of Bail Act, 1997.
64.—The Schedule to the Bail Act, 1997, is hereby amended by the substitution, for the matter contained in paragraph 17, of “Any offence under the Criminal Justice (Theft and Fraud Offences) Act, 2001.” and by the deletion of the section headed “Forgery etc. offences.”.
Effect of Act and transitional provisions.
65.—(1) This Act, save as otherwise provided by it, shall, as regards offences under any of its provisions, have effect only in relation to offences wholly or partly committed on or after the commencement of any such provision.
(2) No repeal or amendment by this Act of any enactment relating to procedure or evidence or to the jurisdiction or powers of any court or to the effect of a conviction shall affect the operation of the enactment in relation to offences committed before the commencement of this Act or to proceedings for any such offence.
(3) If—
(a) a person is charged in the alternative with having committed an offence under a statute or rule of law in force immediately before the commencement of this Act and an offence under this Act, and
(b) it is proved that the person did acts which would constitute either of the offences charged, but it is not proved whether those acts were done before or after such commencement,
the person may be convicted of the first-mentioned offence but shall not be liable to a penalty greater than the lesser of the maximum penalties provided for the two offences with which the person was charged.
(4) Except as regards offences committed before the commencement of this Act and except where the context otherwise requires—
(a) references in any enactment passed before this Act to an offence abolished by this Act shall, subject to any express amendment or repeal made by this Act, have effect as references to the corresponding offence under this Act, and
(b) without prejudice to paragraph (a), references, however expressed, in any enactment, whenever passed, to theft or stealing (including references to stolen goods) or related offences, and references to robbery, burglary, aggravated burglary, receiving or handling stolen property, forgery or counterfeiting shall be construed in accordance with the provisions of this Act, and any such enactment shall have effect accordingly, with any necessary modifications.
(5) (a) The repeal by section 3(1) of sections 23 (robbery), 23A (burglary) and 23B (aggravated burglary) of the Larceny Act, 1916, shall not affect the operation of those sections for the purposes of section 2 of, and paragraph 9 of the Schedule to, the Criminal Law (Jurisdiction) Act, 1976, and accordingly that section and that paragraph shall have effect as if section 3(1) had not been enacted.
(b) References in paragraph (a) to sections 23, 23A and 23B of the Larceny Act, 1916, are to those sections as substituted, or as the case may be inserted, by sections 5 to 7 of the Criminal Law (Jurisdiction) Act, 1976.
(6) On the commencement of this subsection—
(a) subsection (5) shall cease to have effect,
(b) sections 5 to 7 of the Criminal Law (Jurisdiction) Act, 1976, shall be repealed, and
(c) the following paragraph shall be substituted for paragraph 9 of the Schedule to the Criminal Law (Jurisdiction) Act, 1976:
“Robbery and burglary
9. Any offence under the following provisions of the Criminal Justice (Theft and Fraud Offences) Act, 2001:
(a) section 13 (aggravated burglary);
(b) section 14 (robbery).”.
SCHEDULE 1
Section 3.
Enactments Repealed
Session & Chapter or Number & Year
Short Title
Extent of repeal
(1)
(2)
(3)
24 & 25 Vict., c. 96
Larceny Act, 1861
The whole Act, except sections 12 to 16 and 24 and 25
24 & 25 Vict., c. 98
Forgery Act, 1861
The whole Act
24 & 25 Vict., c. 99
Coinage Offences Act, 1861
The whole Act
24 & 25 Vict., c. 50
Summary Jurisdiction (Ireland) Act, 1862
Sections 4 to 8
35 & 36 Vict., c. 57
Debtors (Ireland) Act, 1872
Section 13
38 & 39 Vict., c. 24
Falsification of Accounts Act, 1875
The whole Act
56 & 57 Vict., c. 71
Sale of Goods Act, 1893
Section 24
3 & 4 Geo. 5, c. 27
Forgery Act, 1913
The whole Act
6 & 7 Geo. 5, c. 50
Larceny Act, 1916
The whole Act
No. 2 of 1951
Criminal Justice Act, 1951
Sections 10 and 13 and ref. nos. 8, 11, 14, 15 and 20 of First Schedule
No. 2 of 1956
Gaming and Lotteries Act, 1956
Section 11
No. 1 of 1963
Official Secrets Act, 1963
Sections 7 and 8
No. 22 of 1984
Criminal Justice Act, 1984
Section 16
No. 9 of 1990
Larceny Act, 1990
The whole Act
F44[SCHEDULE 1A
DIRECTIVE (EU) 2017/1371 on the fight against fraud to the Union’s financial interests by means of criminal law
OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 5 July 2017
on the fight against fraud to the Union’s financial interests by means of criminal law
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 83(2) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the Committee of the Regions2
Acting in accordance with the ordinary legislative procedure,3
Whereas:
(1) The protection of the Union’s financial interests concerns not only the management of budget appropriations, but extends to all measures which negatively affect or which threaten to negatively affect its assets and those of the Member States, to the extent that those measures are of relevance to Union policies.
(2) The Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests of 26 July 1995,4 including the Protocols thereto of 27 September 1996,5 of 29 November 19966 and of 19 June 19977 (the ‘Convention’) establishes minimum rules relating to the definition of criminal offences and sanctions in the area of fraud affecting the Union’s financial interests. The Member States drew up the Convention, in which it was noted that fraud affecting Union revenue and expenditure in many cases was not confined to a single country and was often committed by organised criminal networks. On that basis, it was already recognised in the Convention that the protection of the Union’s financial interests called for the criminal prosecution of fraudulent conduct injuring those interests. In parallel, Council Regulation (EC, Euratom) No 2988/958 was adopted. That Regulation lays down general rules relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to Union law while, at the same time, referring to sectoral rules in that area, fraudulent actions as defined in the Convention and the application of the Member States’ criminal law and proceedings.
(3) Union policy in the area of the protection of the Union’s financial interests has already been the subject of harmonisation measures such as Regulation (EC, Euratom) No 2988/95. In order to ensure the implementation of Union policy in this area, it is essential to continue to approximate the criminal law of the Member States by complementing the protection of the Union’s financial interests under administrative and civil law for the most serious types of fraud-related conduct in that field, whilst avoiding inconsistencies, both within and among those areas of law.
(4) The protection of the Union’s financial interests calls for a common definition of fraud falling within the scope of this Directive, which should cover fraudulent conduct with respect to revenues, expenditure and assets at the expense of the general budget of the European Union (the ‘Union budget’), including financial operations such as borrowing and lending activities. The notion of serious offences against the common system of value added tax (‘VAT’) as established by Council Directive 2006/112/EC9 (the ‘common VAT system’) refers to the most serious forms of VAT fraud, in particular carrousel fraud, VAT fraud through missing traders, and VAT fraud committed within a criminal organisation, which create serious threats to the common VAT system and thus to the Union budget. Offences against the common VAT system should be considered to be serious where they are connected with the territory of two or more Member States, result from a fraudulent scheme whereby those offences are committed in a structured way with the aim of taking undue advantage of the common VAT system and the total damage caused by the offences is at least EUR 10 000 000. The notion of total damage refers to the estimated damage that results from the entire fraud scheme, both to the financial interests of the Member States concerned and to the Union, excluding interest and penalties. This Directive aims to contribute to the efforts to fight those criminal phenomena.
(5) When the Commission implements the Union budget under shared or indirect management, it may delegate budget implementation tasks to the Member States or entrust them to bodies, offices or agencies established pursuant to the Treaties or to other entities or persons. In the event of such shared or indirect management, the Union’s financial interests should benefit from the same level of protection as they do when under the direct management of the Commission.
(6) For the purposes of this Directive, procurement-related expenditure is any expenditure in connection with the public contracts determined by Article 101(1) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council.10
(7) Union money laundering law is fully applicable to money laundering involving property derived from the criminal offences covered by this Directive. A reference made to that law should ensure that the sanctioning regime introduced by this Directive applies to all serious cases of criminal offences against the Union’s financial interests.
(8) Corruption constitutes a particularly serious threat to the Union’s financial interests, which can in many cases also be linked to fraudulent conduct. Since all public officials have a duty to exercise judgment or discretion impartially, the giving of bribes in order to influence a public official’s judgment or discretion and the taking of such bribes should be included in the definition of corruption, irrespective of the law or regulations applicable in the particular official’s country or to the international organisation concerned.
(9) The Union’s financial interests can be negatively affected by certain types of conduct of a public official who is entrusted with the management of funds or assets, whether he or she is in charge or acts in a supervisory capacity, which types of conduct aim at misappropriating funds or assets, contrary to the intended purpose and whereby the Union’s financial interests are damaged. There is therefore a need to introduce a precise definition of criminal offences covering such conduct.
(10) As regards the criminal offences of passive corruption and misappropriation, there is a need to include a definition of public officials covering all relevant officials, whether holding a formal office in the Union, in the Member States or in third countries. Private persons are increasingly involved in the management of Union funds. In order to protect Union funds adequately from corruption and misappropriation, the definition of ‘public official’ therefore needs to cover persons who do not hold formal office but who are nonetheless assigned and exercise, in a similar manner, a public service function in relation to Union funds, such as contractors involved in the management of such funds.
(11) With regard to the criminal offences provided for in this Directive, the notion of intention must apply to all the elements constituting those criminal offences. The intentional nature of an act or omission may be inferred from objective, factual circumstances. Criminal offences which do not require intention are not covered by this Directive.
(12) This Directive does not oblige Member States to provide for sanctions of imprisonment for the commission of criminal offences that are not of a serious nature, in cases where intent is presumed under national law.
(13) Some criminal offences against the Union’s financial interests are in practice often closely related to the criminal offences covered by Article 83(1) of the Treaty on the Functioning of the European Union (TFEU) and Union legislative acts that are based on that provision. Coherence between such legislative acts and this Directive should therefore be ensured in the wording of this Directive.
(14) Insofar as the Union’s financial interests can be damaged or threatened by conduct attributable to legal persons, legal persons should be liable for the criminal offences, as defined in this Directive, which are committed on their behalf.
(15) In order to ensure equivalent protection of the Union’s financial interests throughout the Union by means of measures which should act as a deterrent, Member States should provide for certain types and levels of sanctions when the criminal offences defined in this Directive are committed. The levels of sanctions should not go beyond what is proportionate for the offences.
(16) As this Directive provides for minimum rules, Member States are free to adopt or maintain more stringent rules for criminal offences affecting the Union’s financial interests.
(17) This Directive does not affect the proper and effective application of disciplinary measures or penalties other than of a criminal nature. Sanctions that cannot be equated to criminal sanctions, which are imposed on the same person for the same conduct, can be taken into account when sentencing that person for a criminal offence defined in this Directive. For other sanctions, the principle of prohibition of being tried or punished twice in criminal proceedings for the same criminal offence (ne bis in idem) should be fully respected. This Directive does not criminalise behaviour which is not also subject to disciplinary penalties or other measures concerning a breach of official duties, in cases where such disciplinary penalties or other measures can be applied to the persons concerned.
(18) Sanctions with regard to natural persons should, in certain cases, provide for a maximum penalty of at least four years of imprisonment. Such cases should include at least those involving considerable damage done or advantage gained whereby the damage or advantage should be presumed to be considerable when it involves more than EUR 100 000. Where a Member State’s law does not provide for an explicit threshold for considerable damage or advantage as a basis for a maximum penalty, the Member State should ensure that the amount of damage or advantage is taken into account by its courts in the determination of sanctions for fraud and other criminal offences affecting the Union’s financial interests. This Directive does not prevent Member States from providing for other elements which would indicate the serious nature of a criminal offence, for instance when the damage or advantage is potential, but of very considerable nature. However, for offences against the common VAT system, the threshold as of which the damage or advantage should be presumed to be considerable is, in conformity with this Directive, EUR 10 000 000. The introduction of minimum levels of maximum imprisonment sanctions is necessary in order to ensure equivalent protection of the Union’s financial interests throughout the Union. The sanctions are intended to serve as a strong deterrent for potential offenders, with effect throughout the Union.
(19) Member States should ensure that the fact that a criminal offence is committed within a criminal organisation as defined in Council Framework Decision 2008/841/JHA11 is considered to be an aggravating circumstance in accordance with the applicable rules established by their legal systems. They should ensure that the aggravating circumstance is made available to judges for their consideration when sentencing offenders, although there is no obligation on judges to take the aggravating circumstance into account in their sentence. Member States are not obliged to provide for the aggravating circumstance where national law provides for the criminal offences as defined in Framework Decision 2008/841/JHA to be punishable as a separate criminal offence and this may lead to more severe sanctions.
(20) Given, in particular, the mobility of perpetrators and of the proceeds stemming from illegal activities at the expense of the Union’s financial interests, as well as the complex cross-border investigations which this entails, each Member State should establish its jurisdiction in order to enable it to counter such activities. Each Member State should thereby ensure that its jurisdiction covers criminal offences which are committed using information and communication technology accessed from its territory.
(21) Given the possibility of multiple jurisdictions for cross-border criminal offences falling under the scope of this Directive, the Member States should ensure that the principle of ne bis in idem is respected in full in the application of national law transposing this Directive.
(22) Member States should lay down rules concerning limitation periods necessary in order to enable them to counter illegal activities at the expense of the Union’s financial interests. In cases of criminal offences punishable by a maximum sanction of at least four years of imprisonment, the limitation period should be at least five years from the time when the criminal offence was committed. This should be without prejudice to those Member States which do not set limitation periods for investigation, prosecution and enforcement.
(23) Without prejudice to the rules on cross-border cooperation and mutual legal assistance in criminal matters and to other rules under Union law, in particular under Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council,12 there is a need for appropriate provision to be made for cooperation to ensure effective action against the criminal offences defined in this Directive affecting the Union’s financial interests, including exchange of information between the Member States and the Commission as well as technical and operational assistance provided by the Commission to the competent national authorities as they may need to facilitate coordination of their investigations. Such assistance should not entail the participation of the Commission in the investigation or prosecution procedures of individual criminal cases conducted by the national authorities. The Court of Auditors and the auditors responsible for auditing the budgets of the Union institutions, bodies, offices and agencies should disclose to the European Anti-Fraud Office (OLAF) and to other competent authorities any fact which could be qualified as a criminal offence under this Directive, and Member States should ensure that national audit bodies within the meaning of Article 59 of Regulation (EU, Euratom) No 966/2012 do the same, in accordance with Article 8 of Regulation (EU, Euratom) No 883/2013.
(24) The Commission should report to the European Parliament and to the Council on the measures taken by Member States to comply with this Directive. The report may be accompanied, if necessary, by proposals taking into consideration possible evolutions, in particular regarding the financing of the Union budget.
(25) The Convention should be replaced by this Directive for the Member States bound by it.
(26) For the application of point (d) of Article 3(4) of Directive (EU) 2015/849 of the European Parliament and of the Council,13 the reference to serious fraud affecting the Union’s financial interests as defined in Article 1(1) and Article 2(1) of the Convention should be construed as fraud affecting the Union’s financial interests as defined in Article 3 and in Article 7(3) of this Directive or, as regards offences against the common VAT system, as defined in Article 2(2) of this Directive.
(27) Proper implementation of this Directive by the Member States includes the processing of personal data by the competent national authorities, and the exchange of such data between Member States on the one hand, and between competent Union bodies on the other. The processing of personal data at national level between national competent authorities should be regulated by the acquis of the Union. The exchange of personal data between Member States should be carried out in accordance with Directive (EU) 2016/680 of the European Parliament and of the Council.14 To the extent that the Union institutions, bodies, offices and agencies process personal data, Regulation (EC) No 45/2001 of the European Parliament and of the Council15 or, where applicable, other Union legal acts regulating the processing of personal data by those bodies, offices and agencies as well as the applicable rules concerning the confidentiality of judicial investigations, should apply.
(28) The intended dissuasive effect of the application of criminal law sanctions requires particular caution with regard to fundamental rights. This Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (the ‘Charter’) and in particular the right to liberty and security, the protection of personal data, the freedom to choose an occupation and right to engage in work, the freedom to conduct a business, the right to property, the right to an effective remedy and to a fair trial, the presumption of innocence and the right of defence, the principles of the legality and proportionality of criminal offences and sanctions, as well as the principle of ne bis in idem. This Directive seeks to ensure full respect for those rights and principles and must be implemented accordingly.
(29) Member States should take the necessary measures to ensure the prompt recovery of sums and their transfer to the Union budget, without prejudice to the relevant Union sector-specific rules on financial corrections and recovery of amounts unduly spent.
(30) Administrative measures and penalties play an important role in the protection of the Union’s financial interests. This Directive does not exempt Member States from the obligation to apply and implement administrative Union measures and penalties within the meaning of Articles 4 and 5 of Regulation (EC, Euratom) No 2988/95.
(31) This Directive should oblige Member States to provide in their national law for criminal penalties in respect of the acts of fraud and fraud-related criminal offences affecting the Union’s financial interests to which this Directive applies. This Directive should not create obligations regarding the application of such penalties or any other available system of law enforcement to individual cases. Member States may in principle continue to apply administrative measures and penalties in parallel in the area covered by this Directive. In the application of national law transposing this Directive, Member States should, however, ensure that the imposition of criminal sanctions for criminal offences in accordance with this Directive and of administrative measures and penalties does not lead to a breach of the Charter.
(32) This Directive should not affect the competences of Member States to structure and organise their tax administration as they see fit to ensure the correct determination, assessment and collection of value added tax, as well as the effective application of VAT law.
(33) This Directive applies without prejudice to the provisions on the lifting of the immunities contained in the TFEU, Protocol No 3 on the Statute of the Court of Justice of the European Union and Protocol No 7 on the Privileges and Immunities of the European Union, annexed to the TFEU and to the Treaty on European Union (TEU), and the texts implementing them, or similar provisions incorporated in national law. In the transposition of this Directive into national law as well as in the application of national law transposing this Directive, those privileges and immunities, including the respect for the freedom of the Member’s mandate, are fully taken into account.
(34) This Directive is without prejudice to the general rules and principles of national criminal law on the application and execution of sentences in accordance with the concrete circumstances in each individual case.
(35) Since the objective of this Directive cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.
(36) In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, Ireland has notified its wish to take part in the adoption and application of this Directive.
(37) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, the United Kingdom is not taking part in the adoption of this Directive and is not bound by it or subject to its application.
(38) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.
(39) The European Court of Auditors has been consulted and has adopted an opinion,16
HAVE ADOPTED THIS DIRECTIVE:
TITLE I
SUBJECT MATTER, DEFINITIONS AND SCOPE
Article 1
Subject matter
This Directive establishes minimum rules concerning the definition of criminal offences and sanctions with regard to combatting fraud and other illegal activities affecting the Union’s financial interests, with a view to strengthening protection against criminal offences which affect those financial interests, in line with the acquis of the Union in this field.
Article 2
Definitions and scope
1. For the purposes of this Directive, the following definitions apply:
(a)‘Union’s financial interests’ means all revenues, expenditure and assets covered by, acquired through, or due to:
(i) the Union budget;
(ii) the budgets of the Union institutions, bodies, offices and agencies established pursuant to the Treaties or budgets directly or indirectly managed and monitored by them;
(b)‘legal person’ means an entity having legal personality under the applicable law, except for States or public bodies in the exercise of State authority and for public international organisations.
2. In respect of revenue arising from VAT own resources, this Directive shall apply only in cases of serious offences against the common VAT system. For the purposes of this Directive, offences against the common VAT system shall be considered to be serious where the intentional acts or omissions defined in point (d) of Article 3(2) are connected with the territory of two or more Member States of the Union and involve a total damage of at least EUR 10 000 000.
3. The structure and functioning of the tax administration of the Member States are not affected by this Directive.
TITLE II
CRIMINAL OFFENCES WITH REGARD TO FRAUD AFFECTING THE UNION’S FINANCIAL INTERESTS
Article 3
Fraud affecting the Union’s financial interests
1. Member States shall take the necessary measures to ensure that fraud affecting the Union’s financial interests constitutes a criminal offence when committed intentionally.
2. For the purposes of this Directive, the following shall be regarded as fraud affecting the Union’s financial interests:
(a) in respect of non-procurement-related expenditure, any act or omission relating to:
(i) the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the misappropriation or wrongful retention of funds or assets from the Union budget or budgets managed by the Union, or on its behalf;
(ii) non-disclosure of information in violation of a specific obligation, with the same effect; or
(iii) the misapplication of such funds or assets for purposes other than those for which they were originally granted;
(b) in respect of procurement-related expenditure, at least when committed in order to make an unlawful gain for the perpetrator or another by causing a loss to the Union’s financial interests, any act or omission relating to:
(i) the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the misappropriation or wrongful retention of funds or assets from the Union budget or budgets managed by the Union, or on its behalf;
(ii) non-disclosure of information in violation of a specific obligation, with the same effect; or
(iii) the misapplication of such funds or assets for purposes other than those for which they were originally granted, which damages the Union’s financial interests;
(c) in respect of revenue other than revenue arising from VAT own resources referred to in point (d), any act or omission relating to:
(i) the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the illegal diminution of the resources of the Union budget or budgets managed by the Union, or on its behalf;
(ii) non-disclosure of information in violation of a specific obligation, with the same effect; or
(iii) misapplication of a legally obtained benefit, with the same effect;
(d) in respect of revenue arising from VAT own resources, any act or omission committed in cross-border fraudulent schemes in relation to:
(i) the use or presentation of false, incorrect or incomplete VAT-related statements or documents, which has as an effect the diminution of the resources of the Union budget;
(ii) non-disclosure of VAT-related information in violation of a specific obligation, with the same effect; or
(iii) the presentation of correct VAT-related statements for the purposes of fraudulently disguising the non-payment or wrongful creation of rights to VAT refunds.
Article 4
Other criminal offences affecting the Union’s financial interests
1. Member States shall take the necessary measures to ensure that money laundering as described in Article 1(3) of Directive (EU) 2015/849 involving property derived from the criminal offences covered by this Directive constitutes a criminal offence.
2. Member States shall take the necessary measures to ensure that passive and active corruption, when committed intentionally, constitute criminal offences.
(a) For the purposes of this Directive, ‘passive corruption’ means the action of a public official who, directly or through an intermediary, requests or receives advantages of any kind, for himself or for a third party, or accepts a promise of such an advantage, to act or to refrain from acting in accordance with his duty or in the exercise of his functions in a way which damages or is likely to damage the Union’s financial interests.
(b) For the purposes of this Directive, ‘active corruption’ means the action of a person who promises, offers or gives, directly or through an intermediary, an advantage of any kind to a public official for himself or for a third party for him to act or to refrain from acting in accordance with his duty or in the exercise of his functions in a way which damages or is likely to damage the Union’s financial interests.
3. Member States shall take the necessary measures to ensure that misappropriation, when committed intentionally, constitutes a criminal offence.
For the purposes of this Directive, ‘misappropriation’ means the action of a public official who is directly or indirectly entrusted with the management of funds or assets to commit or disburse funds or appropriate or use assets contrary to the purpose for which they were intended in any way which damages the Union’s financial interests.
4. For the purposes of this Directive, ‘public official’ means:
(a) a Union official or a national official, including any national official of another Member State and any national official of a third country:
(i)‘Union official’ means a person who is:
—an official or other servant engaged under contract by the Union within the meaning of the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union laid down in Council Regulation (EEC, Euratom, ECSC) No 259/6817 (the ‘Staff Regulations’), or
—seconded to the Union by a Member State or by any public or private body, who carries out functions equivalent to those performed by Union officials or other servants.
Without prejudice to the provisions on privileges and immunities contained in Protocols No 3 and No 7, Members of the Union institutions, bodies, offices and agencies, set up in accordance with the Treaties and the staff of such bodies shall be assimilated to Union officials, inasmuch as the Staff Regulations do not apply to them;
(ii)‘national official’ shall be understood by reference to the definition of ‘official’ or ‘public official’ in the national law of the Member State or third country in which the person in question carries out his or her functions.
Nevertheless, in the case of proceedings involving a national official of a Member State, or a national official of a third country, initiated by another Member State, the latter shall not be bound to apply the definition of ‘national official’ except insofar as that definition is compatible with its national law.
The term ‘national official’ shall include any person holding an executive, administrative or judicial office at national, regional or local level. Any person holding a legislative office at national, regional or local level shall be assimilated to a national official;
(b) any other person assigned and exercising a public service function involving the management of or decisions concerning the Union’s financial interests in Member States or third countries.
TITLE III
GENERAL PROVISIONS RELATING TO FRAUD AND OTHER CRIMINAL OFFENCES AFFECTING THE UNION’S FINANCIAL INTERESTS
Article 5
Incitement, aiding and abetting, and attempt
1. Member States shall take the necessary measures to ensure that inciting, and aiding and abetting the commission of any of the criminal offences referred to in Articles 3 and 4 are punishable as criminal offences.
2. Member States shall take the necessary measures to ensure that an attempt to commit any of the criminal offences referred to in Article 3 and Article 4(3) is punishable as a criminal offence.
Article 6
Liability of legal persons
1. Member States shall take the necessary measures to ensure that legal persons can be held liable for any of the criminal offences referred to in Articles 3, 4 and 5 committed for their benefit by any person, acting either individually or as part of an organ of the legal person, and having a leading position within the legal person, based on:
(a) a power of representation of the legal person;
(b) an authority to take decisions on behalf of the legal person; or
(c) an authority to exercise control within the legal person.
2. Member States shall also take the necessary measures to ensure that legal persons can be held liable where the lack of supervision or control by a person referred to in paragraph 1 of this Article has made possible the commission, by a person under its authority, of any of the criminal offences referred to in Article 3, 4 or 5 for the benefit of that legal person.
3. Liability of legal persons under paragraphs 1 and 2 of this Article shall not exclude the possibility of criminal proceedings against natural persons who are perpetrators of the criminal offences referred to in Articles 3 and 4 or who are criminally liable under Article 5.
Article 7
Sanctions with regard to natural persons
1. As regards natural persons, Member States shall ensure that the criminal offences referred to in Articles 3, 4 and 5 are punishable by effective, proportionate and dissuasive criminal sanctions.
2. Member States shall take the necessary measures to ensure that the criminal offences referred to in Articles 3 and 4 are punishable by a maximum penalty which provides for imprisonment.
3. Member States shall take the necessary measures to ensure that the criminal offences referred to in Articles 3 and 4 are punishable by a maximum penalty of at least four years of imprisonment when they involve considerable damage or advantage.
The damage or advantage resulting from the criminal offences referred to in points (a), (b) and (c) of Article 3(2) and in Article 4 shall be presumed to be considerable where the damage or advantage involves more than EUR 100 000.
The damage or advantage resulting from the criminal offences referred to in point (d) of Article 3(2) and subject to Article 2(2) shall always be presumed to be considerable.
Member States may also provide for a maximum sanction of at least four years of imprisonment in other serious circumstances defined in their national law.
4. Where a criminal offence referred to in point (a), (b) or (c) of Article 3(2) or in Article 4 involves damage of less than EUR 10 000 or an advantage of less than EUR 10 000, Member States may provide for sanctions other than criminal sanctions.
5. Paragraph 1 shall be without prejudice to the exercise of disciplinary powers by the competent authorities against public officials.
Article 8
Aggravating circumstance
Member States shall take the necessary measures to ensure that where a criminal offence referred to in Article 3, 4 or 5 is committed within a criminal organisation in the sense of Framework Decision 2008/841/JHA, this shall be considered to be an aggravating circumstance.
Article 9
Sanctions with regard to legal persons
Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 6 is subject to effective, proportionate and dissuasive sanctions, which shall include criminal or non-criminal fines and may include other sanctions, such as:
(a) exclusion from entitlement to public benefits or aid;
(b) temporary or permanent exclusion from public tender procedures;
(c) temporary or permanent disqualification from the practice of commercial activities;
(d) placing under judicial supervision;
(e) judicial winding-up;
(f) temporary or permanent closure of establishments which have been used for committing the criminal offence.
Article 10
Freezing and confiscation
Member States shall take the necessary measures to enable the freezing and confiscation of instrumentalities and proceeds from the criminal offences referred to in Articles 3, 4 and 5. Member States bound by Directive 2014/42/EU of the European Parliament and of the Council18 shall do so in accordance with that Directive.
Article 11
Jurisdiction
1. Each Member State shall take the necessary measures to establish its jurisdiction over the criminal offences referred to in Articles 3, 4 and 5 where:
(a) the criminal offence is committed in whole or in part within its territory; or
(b) the offender is one of its nationals.
2. Each Member State shall take the necessary measures to establish its jurisdiction over the criminal offences referred to in Articles 3, 4 and 5 where the offender is subject to the Staff Regulations at the time of the criminal offence. Each Member State may refrain from applying the rules on jurisdiction established in this paragraph or may apply them only in specific cases or only where specific conditions are fulfilled and shall inform the Commission thereof.
3. A Member State shall inform the Commission where it decides to extend its jurisdiction to criminal offences referred to in Article 3, 4 or 5 which have been committed outside its territory in any of the following situations:
(a) the offender is a habitual resident in its territory;
(b) the criminal offence is committed for the benefit of a legal person established in its territory; or
(c) the offender is one of its officials who acts in his or her official duty.
4. In cases referred to in point (b) of paragraph 1, Member States shall take the necessary measures to ensure that the exercise of their jurisdiction is not subject to the condition that a prosecution can be initiated only following a report made by the victim in the place where the criminal offence was committed, or a denunciation from the State of the place where the criminal offence was committed.
Article 12
Limitation periods for criminal offences affecting the Union’s financial interests
1. Member States shall take the necessary measures to provide for a limitation period that enables the investigation, prosecution, trial and judicial decision of criminal offences referred to in Articles 3, 4 and 5 for a sufficient period of time after the commission of those criminal offences, in order for those criminal offences to be tackled effectively.
2. Member States shall take the necessary measures to enable the investigation, prosecution, trial and judicial decision of criminal offences referred to in Articles 3, 4 and 5 which are punishable by a maximum sanction of at least four years of imprisonment, for a period of at least five years from the time when the offence was committed.
3. By way of derogation from paragraph 2, Member States may establish a limitation period that is shorter than five years, but not shorter than three years, provided that the period may be interrupted or suspended in the event of specified acts.
4. Member States shall take the necessary measures to enable the enforcement of:
(a) a penalty of more than one year of imprisonment; or alternatively
(b) a penalty of imprisonment in the case of a criminal offence which is punishable by a maximum sanction of at least four years of imprisonment,
imposed following a final conviction for a criminal offence referred to in Article 3, 4 or 5, for at least five years from the date of the final conviction. That period may include extensions of the limitation period arising from interruption or suspension.
Article 13
Recovery
This Directive shall be without prejudice to the recovery of the following:
(1) at Union level of sums unduly paid in the context of the commission of the criminal offences referred to in point (a), (b) or (c) of Article 3(2), or in Article 4 or 5;
(2) at national level, of any VAT not paid in the context of the commission of the criminal offences referred in point (d) of Article 3(2), or in Article 4 or 5.
Article 14
Interaction with other applicable legal acts of the Union
The application of administrative measures, penalties and fines as laid down in Union law, in particular those within the meaning of Articles 4 and 5 of Regulation (EC, Euratom) No 2988/95, or in national law adopted in compliance with a specific obligation under Union law, shall be without prejudice to this Directive. Member States shall ensure that any criminal proceedings initiated on the basis of national provisions implementing this Directive do not unduly affect the proper and effective application of administrative measures, penalties and fines that cannot be equated to criminal proceedings, laid down in Union law or national implementing provisions.
TITLE IV
FINAL PROVISIONS
Article 15
Cooperation between the Member States and the Commission (OLAF) and other Union institutions, bodies, offices or agencies
1. Without prejudice to the rules on cross-border cooperation and mutual legal assistance in criminal matters, the Member States, Eurojust, the European Public Prosecutor’s Office and the Commission shall, within their respective competences, cooperate with each other in the fight against the criminal offences referred to in Articles 3, 4 and 5. To that end the Commission, and where appropriate, Eurojust, shall provide such technical and operational assistance as the competent national authorities need to facilitate coordination of their investigations.
2. The competent authorities in the Member States may, within their competences, exchange information with the Commission so as to make it easier to establish the facts and to ensure effective action against the criminal offences referred to in Articles 3, 4 and 5. The Commission and the competent national authorities shall take into account in each specific case the requirements of confidentiality and the rules on data protection. Without prejudice to national law on access to information, a Member State may, to that end, when supplying information to the Commission, set specific conditions covering the use of information, whether by the Commission or by another Member State to which the information is passed.
3. The Court of Auditors and auditors responsible for auditing the budgets of the Union institutions, bodies, offices and agencies established pursuant to the Treaties, and the budgets managed and audited by the institutions, shall disclose to OLAF and to other competent authorities any fact of which they become aware when carrying out their duties, which could be qualified as a criminal offence referred to in Article 3, 4 or 5. Member States shall ensure that national audit bodies do the same.
Article 16
Replacement of the Convention on the protection of the European Communities’ financial interests
The Convention on the protection of the European Communities’ financial interests of 26 July 1995, including the Protocols thereto of 27 September 1996, of 29 November 1996 and of 19 June 1997, is hereby replaced by this Directive for the Member States bound by it, with effect from 6 July 2019.
For the Member States bound by this Directive, references to the Convention shall be construed as references to this Directive.
Article 17
Transposition
1. Member States shall adopt and publish, by 6 July 2019, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately communicate the text of those measures to the Commission. They shall apply those measures from 6 July 2019.
When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that, for the Member States bound by this Directive, references in existing laws, regulations and administrative provisions to the Convention replaced by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 18
Reporting and assessment
1. The Commission shall by 6 July 2021 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.
2. Without prejudice to reporting obligations laid down in other Union legal acts, Member States shall, on an annual basis, submit the following statistics on the criminal offences referred to in Articles 3, 4 and 5 to the Commission, if they are available at a central level in the Member State concerned:
(a) the number of criminal proceedings initiated, dismissed, resulting in an acquittal, resulting in a conviction and ongoing;
(b) the amounts recovered following criminal proceedings and the estimated damage.
3. The Commission shall, by 6 July 2024 and taking into account its report submitted pursuant to paragraph 1 and the Member States’ statistics submitted pursuant to paragraph 2, submit a report to the European Parliament and to the Council, assessing the impact of national law transposing this Directive on the prevention of fraud to the Union’s financial interests.
4. The Commission shall, by 6 July 2022 and on the basis of the statistics submitted by Member States, pursuant to paragraph 2, submit a report to the European Parliament and to the Council, assessing, with regard to the general objective to strengthen the protection of the Union’s financial interests, whether:
(a) the threshold indicated in Article 2(2) is appropriate;
(b) the provisions relating to limitation periods as referred to in Article 12 are sufficiently effective;
(c) this Directive effectively addresses cases of procurement fraud.
5. The reports referred to in paragraphs 3 and 4 shall be accompanied, if necessary, by a legislative proposal, which may include a specific provision on procurement fraud.
Article 19
Entry into force
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
Article 20
Addressees
This Directive is addressed to the Member States in accordance with the Treaties.
Done at Strasbourg, 5 July 2017.
For the European Parliament
For the Council
The President
The President
A. TAJANI
M. MAASIKAS.]
Annotations:
Amendments:
F44
Inserted (14.04.2021) by Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021 (2/2021), s. 8, S.I. No. 167 of 2021.
10 Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ L 298, 26.10.2012, p. 1).
11 Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime (OJ L 300, 11.11.2008, p. 42).
12 Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1).
13 Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).
14 Directive (EU) 2016/680 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 by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89).
15 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1).
16 OJ C 383, 12.12.2012, p. 1.
17 OJ L 56, 4.3.1968, p. 1.
18 Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (OJ L 127, 29.4.2014, p. 39).
2 OJ C 391, 18.12.2012, p. 134.
3 Position of the European Parliament of 16 April 2014 (not yet published in the Official Journal) and position of the Council at first reading of 25 April 2017 (OJ C 184, 9. 6.2017, p.1). Position of the European Parliament of 5 July 2017 (not yet published in the Official Journal).
4 OJ C 316, 27.11.1995, p. 48.
5 OJ C 313, 23.10.1996, p. 1.
6 OJ C 151, 20.5.1997, p. 1.
7 OJ C 221, 19.7.1997, p. 11.
8 Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests (OJ L 312, 23.12.1995, p. 1).
9 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1).
SCHEDULE 2
Section 41.
Text in the English language of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests done at Brussels on 26 July 1995
F45[…]
Annotations:
Amendments:
F45
Repealed (14.04.2021) by Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021 (2/2021), s. 12(d), S.I. No. 167 of 2021.
SCHEDULE 3
Section 41.
Text in the Irish language of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests done at Brussels on 26 July 1995
F46[…]
Annotations:
Amendments:
F46
Repealed (14.04.2021) by Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021 (2/2021), s. 12(d), S.I. No. 167 of 2021.
SCHEDULE 4
Section 41.
Text in the English language of the Protocol drawn up on the basis of Article K.3 of the Treaty on European Union to the Convention on the protection of the European Communities’ financial interests done at Brussels on 27 September 1996
F47[…]
Annotations:
Amendments:
F47
Repealed (14.04.2021) by Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021 (2/2021), s. 12(d), S.I. No. 167 of 2021.
SCHEDULE 5
Section 41.
Text in the Irish language of the Protocol drawn up on the basis of Article K.3 of the Treaty on European Union to the Convention on the protection of the European Communities’ financial interests done at Brussels on 27 September 1996
F48[…]
Annotations:
Amendments:
F48
Repealed (14.04.2021) by Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021 (2/2021), s. 12(d), S.I. No. 167 of 2021.
SCHEDULE 6
Section 41.
Text in the English language of the Protocol drawn up on the basis of Article K.3 of the Treaty on European Union, on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the protection of the European Communities’ financial interests done at Brussels on 29 November 1996
F49[…]
Annotations:
Amendments:
F49
Repealed (14.04.2021) by Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021 (2/2021), s. 12(d), S.I. No. 167 of 2021.
SCHEDULE 7
Section 41.
Text in the Irish language of the Protocol drawn up on the basis of Article K.3 of the Treaty on European Union, on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the protection of the European Communities’ financial interests done at Brussels on 29 November 1996
F50[…]
Annotations:
Amendments:
F50
Repealed (14.04.2021) by Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021 (2/2021), s. 12(d), S.I. No. 167 of 2021.
SCHEDULE 8
Section 41.
Text in the English language of the Protocol drawn up on the basis of Article K.3 of the Treaty on European Union, to the Convention on the protection of the European Communities’ financial interests done at Brussels on 19 June 1997
F51[…]
Annotations:
Amendments:
F51
Repealed (14.04.2021) by Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021 (2/2021), s. 12(d), S.I. No. 167 of 2021.
SCHEDULE 9
Section 41.
Text in the Irish language of the Protocol drawn up on the basis of Article K.3 of the Treaty on European Union, to the Convention on the protection of the European Communities financial interests done at Brussels on 19 June 1997
F52[…]
Annotations:
Amendments:
F52
Repealed (14.04.2021) by Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021 (2/2021), s. 12(d), S.I. No. 167 of 2021.