Theft Issues
CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT 2001
REVISED
Updated to 1 November 2023
AN ACT TO AMEND THE LAW RELATING TO STEALING AND RELATED OFFENCES AND THEIR INVESTIGATION AND TRIAL; TO GIVE THE FORCE OF LAW TO PROVISIONS OF THE CONVENTION ON THE PROTECTION OF THE EUROPEAN COMMUNITIES’ FINANCIAL INTERESTS DONE AT BRUSSELS ON 26 JULY 1995 AND THE THREE PROTOCOLS TO THAT CONVENTION; AND TO PROVIDE FOR CONSEQUENTIAL AND RELATED MATTERS. [19th December, 2001]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
PART 1
Preliminary
Short title and commencement.
1.—(1) This Act may be cited as the Criminal Justice (Theft and Fraud Offences) Act, 2001.
(2) Subject to subsection (3), this Act shall come into operation on such day or days as may be appointed by order or orders made by the Minister, either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions of this Act.
(3) Parts 5 and 7 and sections 23, 53, 58 and 60(1) shall come into operation on the passing of this Act.
Annotations
Editorial Notes:
E1
Power pursuant to subs. (2) exercised (1.08.2011) by Criminal Justice (Theft and Fraud Offences) Act 2001 (Commencement) Order 2011 (S.I. No. 394 of 2011).
2. The 1st day of August 2011 is appointed as the day on which section 57 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (No. 50 of 2001) shall come into operation.
E2
Power pursuant to subs. (2) exercised (1.08.2002) by Criminal Justice (Theft and Fraud Offences) Act 2001 (Commencement) Order 2002 (S.I. No. 252 of 2002).
The 1st day of August 2002 is fixed as the day on which the remaining provisions (other than section 57) of the Criminal Justice (Theft and Fraud Offences) Act 2001 shall come into operation, that is to say:
(a) Parts 1, 2, 4 and 6, and
(b) section 16 to 22, 54 to 56, 59, 60(2) and 61 to 65.
Interpretation (general).
2.—(1) In this Act—
“appropriates” has the meaning given to it by section 4(5);
“deception” has the meaning given to it by subsection (2);
“dishonestly” means without a claim of right made in good faith;
“document” includes—
(a) a map, plan, graph, drawing, photograph or record, or
(b) a reproduction in permanent legible form, by a computer or other means (including enlarging), of information in non-legible form;
“gain” and “loss” have the meanings given to them by subsection (3);
“information in non-legible form” means information which is kept (by electronic means or otherwise) on microfilm, microfiche, magnetic tape or disk or in any other non-legible form;
“owner” and “ownership”, in relation to property, have the meanings given to them by subsection (4);
“premises” includes a vehicle, vessel, aircraft or hovercraft or an installation in F1[the territorial sea or in a designated area (within the meaning of the Maritime Jurisdiction Act 2021)] or a tent, caravan or other temporary or movable structure;
“property” means money and all other property, real or personal, including things in action and other intangible property;
“record” includes any information in non-legible form which is capable of being reproduced in permanent legible form;
“stealing” means committing an offence under section 4, and cognate words shall be construed accordingly;
“stolen property” includes property which has been unlawfully obtained otherwise than by stealing, and cognate words shall be construed accordingly;
“theft” has the meaning given to it by section 4(1); and
“unlawfully obtained” means obtained in circumstances constituting an offence, and cognate words shall be construed accordingly.
(2) For the purposes of this Act a person deceives if he or she—
(a) creates or reinforces a false impression, including a false impression as to law, value or intention or other state of mind,
(b) prevents another person from acquiring information which would affect that person’s judgement of a transaction, or
(c) fails to correct a false impression which the deceiver previously created or reinforced or which the deceiver knows to be influencing another to whom he or she stands in a fiduciary or confidential relationship,
and references to deception shall be construed accordingly.
(3) For the purposes of this Act—
(a) “gain” and “loss” are to be construed as extending only to gain or loss in money or other property, whether any such gain or loss is temporary or permanent,
(b) “gain” includes a gain by keeping what one has, as well as a gain by getting what one has not, and
(c) “loss” includes a loss by not getting what one might get, as well as a loss by parting with what one has.
(4) For the purposes of this Act—
(a) a person shall be regarded as owning property if he or she has possession or control of it, or has in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest);
(b) where property is subject to a trust, the persons who own it shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right;
(c) where a person receives property from or on behalf of another, and is under an obligation to that other person to retain and deal with that property or its proceeds in a particular way, that other person shall be regarded (as against the first-mentioned person) as the owner of the property;
(d) where a person gets property by another’s mistake and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then the person entitled to restoration shall to the extent of that obligation be regarded (as against the first-mentioned person) as the owner of the property or its proceeds or an amount equivalent to its value, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property, proceeds or such amount;
(e) property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation,
and references to “owner” and “ownership” shall be construed accordingly.
(5) (a) A reference in this Act to a Part, section or Schedule is a reference to a Part, section or Schedule of this Act unless it is indicated that a reference to some other Act is intended.
(b) A reference in this Act to a subsection, paragraph or subparagraph is to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that a reference to some other provision is intended.
(c) A reference in this Act to any enactment shall be construed as a reference to that enactment as amended, adapted or extended, whether before or after the passing of this Act, by or under any subsequent enactment.
Annotations:
Amendments:
F1
Substituted (22.11.2021) by Maritime Jurisdiction Act 2021 (28/2021), s. 20(3) and sch. 2 item 23, S.I. No. 601 of 2021.
Repeals, etc.
3.—(1) Subject to section 65, the Acts specified in Schedule 1 are repealed to the extent specified in the third column of that Schedule.
(2) Any offence at common law of larceny, burglary, robbery, cheating (except in relation to the public revenue), extortion under colour of office and forgery is abolished.
(3) The abolition of a common law offence mentioned in subsection (2) shall not affect proceedings for any such offence committed before its abolition.
PART 2
Theft and Related Offences
Annotations
Editorial Notes:
E3
Liability for repayment on conviction under Part provided (1.12.2005) by Social Welfare (Consolidation) Act 2005 (26/2005), s. 337, S.I. No. 923 of 2005.
Theft.
4.—(1) Subject to section 5, a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.
(2) For the purposes of this section a person does not appropriate property without the consent of its owner if—
(a) the person believes that he or she has the owner’s consent, or would have the owner’s consent if the owner knew of the appropriation of the property and the circumstances in which it was appropriated, or
(b) (except where the property came to the person as trustee or personal representative) he or she appropriates the property in the belief that the owner cannot be discovered by taking reasonable steps,
but consent obtained by deception or intimidation is not consent for those purposes.
(3) (a) This subsection applies to a person who in the course of business holds property in trust for, or on behalf of, more than one owner.
(b) Where a person to whom this subsection applies appropriates some of the property so held to his or her own use or benefit, the person shall, for the purposes of subsection (1) but subject to subsection (2), be deemed to have appropriated the property or, as the case may be, a sum representing it without the consent of its owner or owners.
(c) If in any proceedings against a person to whom this subsection applies for theft of some or all of the property so held by him or her it is proved that—
(i) there is a deficiency in the property or a sum representing it, and
(ii) the person has failed to provide a satisfactory explanation for the whole or any part of the deficiency,
it shall be presumed, until the contrary is proved, for the purposes of subsection (1) but subject to subsection (2), that the person appropriated, without the consent of its owner or owners, the whole or that part of the deficiency.
(4) If at the trial of a person for theft the court or jury, as the case may be has to consider whether the person believed—
(a) that he or she had not acted dishonestly, or
(b) that the owner of the property concerned had consented or would have consented to its appropriation, or
(c) that the owner could not be discovered by taking reasonable steps,
the presence or absence of reasonable grounds for such a belief is a matter to which the court or jury shall have regard, in conjunction with any other relevant matters, in considering whether the person so believed.
(5) In this section—
“appropriates”, in relation to property, means usurps or adversely interferes with the proprietary rights of the owner of the property;
“depriving” means temporarily or permanently depriving.
(6) A person guilty of theft is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.
Annotations:
Editorial Notes:
E4
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.
Exceptions to theft.
5.—(1) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by that person of rights which that person believes himself or herself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.
(2) A person cannot steal land, or things forming part of land and severed from it by or under his or her directions, except where the person—
(a) being a trustee, personal representative or other person authorised by power of attorney or as liquidator of a company or otherwise to sell or dispose of land owned by another, appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him or her, or
(b) not being in possession of the land, appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed, or
(c) being in possession of the land under a tenancy or licence, appropriates the whole or part of any fixture or structure let or licensed to be used with the land.
(3) For the purposes of subsection (2)—
(a) “land” does not include incorporeal hereditaments,
“tenancy” means a tenancy for years or any less period and includes an agreement for such a tenancy,
“licence” includes an agreement for a licence,
and
(b) a person who after the expiration of a tenancy or licence remains in possession of land shall be treated as having possession under the tenancy or licence, and “let” and “licensed” shall be construed accordingly.
(4) A person who picks mushrooms or any other fungus growing wild on any land, or who picks flowers, fruit or foliage from a plant (including any shrub or tree) growing wild on any land, does not (although not in possession of the land) steal what is picked, unless he or she does it for reward or for sale or other commercial purpose.
(5) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed or ordinarily kept in captivity, or the carcase of any such creature, unless it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.
Making gain or causing loss by deception.
6.—(1) A person who dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, by any deception induces another to do or refrain from doing an act is guilty of an offence.
(2) 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:
Editorial Notes:
E5
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.
Obtaining services by deception.
7.—(1) A person who dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, by any deception obtains services from another is guilty of an offence.
(2) For the purposes of this section a person obtains services from another where the other is induced to confer a benefit on some person by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for.
(3) Without prejudice to the generality of subsection (2), a person obtains services where the other is induced to make a loan, or to cause or permit a loan to be made, on the understanding that any payment (whether by way of interest or otherwise) will be or has been made in respect of the loan.
(4) 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:
Editorial Notes:
E6
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.
Making off without payment.
8.—(1) Subject to subsection (2), a person who, knowing that payment on the spot for any goods obtained or any service done is required or expected, dishonestly makes off without having paid as required or expected and with the intention of avoiding payment on the spot is guilty of an offence.
(2) Subsection (1) shall not apply where the supply of the goods or the doing of the service is contrary to law or where the service done is such that payment is not legally enforceable.
(3) Subject to subsections (5) and (6), any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing an offence under this section.
(4) Where a member of the Garda Síochána, with reasonable cause, suspects that an offence under this section has been committed, he or she may arrest without warrant any person whom the member, with reasonable cause, suspects to be guilty of the offence.
(5) An arrest other than by a member of the Garda Síochána may be effected by a person under subsection (3) only where the person, with reasonable cause, suspects that the person to be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda Síochána.
(6) A person who is arrested pursuant to this section by a person other than a member of the Garda Síochána shall be transferred by that person into the custody of the Garda Síochána as soon as practicable.
(7) A person guilty of an offence under this section is liable on conviction on indictment to a fine not exceeding £3,000 or imprisonment for a term not exceeding 2 years or both.
Unlawful use of computer.
9.—(1) A person who dishonestly, whether within or outside the State, operates or causes to be operated a computer within the State with the intention of making a gain for himself or herself or another, or of causing loss to another, is guilty of an offence.
(2) 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 10 years or both.
Annotations:
Editorial Notes:
E7
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.
False accounting.
10.—(1) A person is guilty of an offence if he or she dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another—
(a) destroys, defaces, conceals or falsifies any account or any document made or required for any accounting purpose,
(b) fails to make or complete any account or any such document, or
(c) in furnishing information for any purpose produces or makes use of any account, or any such document, which to his or her knowledge is or may be misleading, false or deceptive in a material particular.
(2) For the purposes of this section a person shall be treated as falsifying an account or other document if he or she—
(a) makes or concurs in making therein an entry which is or may be misleading, false or deceptive in a material particular, or
(b) omits or concurs in omitting a material particular therefrom.
(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 10 years or both.
Annotations:
Editorial Notes:
E8
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.
Suppression, etc., of documents.
11.—(1) A person is guilty of an offence if he or she dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, destroys, defaces or conceals any valuable security, any will or other testamentary document or any original document of or belonging to, or filed or deposited in, any court or any government department or office.
(2) (a) A person who dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, by any deception procures the execution of a valuable security is guilty of an offence.
(b) Paragraph (a) shall apply in relation to—
(i) the making, acceptance, endorsement, alteration, cancellation or destruction in whole or in part of a valuable security, and
(ii) the signing or sealing of any paper or other material in order that it may be made or converted into, or used or dealt with as, a valuable security,
as if that were the execution of a valuable security.
(3) In this section, “valuable security” means any document—
(a) creating, transferring, surrendering or releasing any right to, in or over property,
(b) authorising the payment of money or delivery of any property, or
(c) evidencing the creation, transfer, surrender or release of any such right, the payment of money or delivery of any property or the satisfaction of any obligation.
(4) 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 10 years or both.
Burglary.
12.—(1) A person is guilty of burglary if he or she—
(a) enters any building or part of a building as a trespasser and with intent to commit an arrestable offence, or
(b) having entered any building or part of a building as a trespasser, commits or attempts to commit any such offence therein.
(2) References in subsection (1) to a building shall apply also to an inhabited vehicle or vessel and to any other inhabited temporary or movable structure, and shall apply to any such vehicle, vessel or structure at times when the person having a habitation in it is not there as well as at times when the person is there.
(3) A person guilty of burglary is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 14 years or both.
(4) In this section, “arrestable offence” means an offence for which a person of full age and not previously convicted may be punished by imprisonment for a term of five years or by a more severe penalty.
Aggravated burglary.
13.—(1) A person is guilty of aggravated burglary if he or she commits any burglary and at the time has with him or her any firearm or imitation firearm, any weapon of offence or any explosive.
(2) In subsection (1)—
“explosive” means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him or her for that purpose;
“firearm” means:
(a) a lethal firearm or other lethal weapon of any description from which any shot, bullet or other missile can be discharged,
(b) an air gun (which expression includes an air rifle and an air pistol) or any other weapon incorporating a barrel from which metal or other slugs can be discharged,
(c) a crossbow,
(d) any type of stun gun or other weapon for causing any shock or other disablement to a person by means of electricity or any other kind of energy emission;
“imitation firearm” means anything which is not a firearm but has the appearance of being one;
“weapon of offence” means:
(a) any article which has a blade or sharp point,
(b) any other article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him or her for such use or for threatening such use,
(c) any weapon of whatever description designed for the discharge of any noxious liquid, noxious gas or other noxious thing.
(3) A person guilty of aggravated burglary is liable on conviction on indictment to imprisonment for life.
Annotations:
Editorial Notes:
E9
Offence under section may be re-tried with court approval as provided (1.09.2010) by Criminal Procedure Act 2010 (27/2010), ss. 15-18 and sch. para. 21, S.I. No. 414 of 2010.
E10
Offence under section may merit minimum sentence under certain condititions as provided (18.05.2007) by Criminal Justice Act 2007 (22/2007), s. 25 and sch. 2 para. 7, S.I. No. 236 of 2007.
E11
Certain persons convicted under section may be made subject of a monitoring order or protection of person order as provided (18.05.2007) by Criminal Justice Act 2007 (22/2007), s. 26(1) and sch. 2 para. 7, S.I. No. 236 of 2007.
Robbery.
14.—(1) A person is guilty of robbery if he or she steals, and immediately before or at the time of doing so, and in order to do so, uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.
(2) A person guilty of robbery is liable on conviction on indictment to imprisonment for life.
Annotations:
Editorial Notes:
E12
Offence under section may be re-tried with court approval as provided (1.09.2010) by Criminal Procedure Act 2010 (27/2010), ss. 15-18 and sch. para. 21, S.I. No. 414 of 2010.
Possession of certain articles.
15.—(1) A person who is, when not at his or her place of residence, in possession of any article with the intention that it be used in the course of or in connection with—
(a) theft or burglary,
(b) an offence under section 6 or 7,
F2[(aa) robbery, ]
(c) an offence under section 17 (blackmail, extortion, demanding money with menaces) of the Criminal Justice (Public Order) Act, 1994, or
(d) an offence under section 112 (taking a vehicle without lawful authority) of the Road Traffic Act, 1961,
is guilty of an offence.
F3[(1A) A person who, without lawful authority or reasonable excuse, is in possession of any article made or adapted for use in the course of, or in connection with, the commission of an offence referred to in paragraphs (a) to (d) of subsection (1) is guilty of an offence.]
F4[(2) It is a defence for a person charged with an offence under subsection (1) to prove that at the time of the alleged offence the article concerned was not in his or her possession for a purpose specified in that subsection.
(2A) It is a defence for a person charged with an offence under subsection (1A) to prove that the article concerned was not made or adapted for use in the course of or in connection with the commission of an offence referred to in paragraphs (a) to (d) of subsection (1).]
(3) Where a person is convicted of an offence under this section, the court may order that any article for the possession of which he or she was so convicted shall be forfeited and either destroyed or disposed of in such manner as the court may determine.
(4) An order under subsection (3) shall not take effect until the ordinary time for instituting an appeal against the conviction or order concerned has expired or, where such an appeal is instituted, until it or any further appeal is finally decided or abandoned or the ordinary time for instituting any further appeal has expired.
(5) 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
Amendments:
F2
Inserted (18.05.2007) by Criminal Justice Act 2007 (29/2007), s. 47(a)(i), S.I. No. 236 of 2007.
F3
Inserted (25.08.2009) by Criminal Justice (Miscellaneous Provisions) Act 2009 (28/2009), s. 49(a), S.I. No. 330 of 2009.
F4
Substituted and inserted (25.08.2009) by Criminal Justice (Miscellaneous Provisions) Act 2009 (28/2009), s. 49(b), S.I. No. 330 of 2009.
Editorial Notes:
E13
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.
E14
Previous affecting provision: subs. (2) substituted (18.05.2007) by Criminal Justice Act 2007 (29/2007), s. 47(a)(ii), S.I. No. 236 of 2007; substituted as per F-note abo
CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) (AMENDMENT) ACT 2021
Definition
1. In this Act “Principal Act” means the Criminal Justice (Theft and Fraud Offences) Act 2001 .
Interpretation (Part 6)
2. The Principal Act is amended by the substitution of the following section for section 40:
“40. (1) In this Part—
‘Act of 2018’ means the Criminal Justice (Corruption Offences) Act 2018 ;
‘corruption offence’ means an offence under section 5 of the Act of 2018;
‘Directive’ means Directive (EU) 2017/1371 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 text of which is, for convenience of reference, set out in Schedule 1A;
‘fraud affecting the financial interests of the European Union’ has the same meaning as ‘fraud affecting the Union’s financial interests’ in Article 3(2) of the Directive;
‘misappropriation’ has the same meaning as it has in Article 4(3) of the Directive;
‘money laundering offence’ means an offence under Part 2 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 ;
‘national official’, for the purposes of the application of Article 4(4)(a) of the Directive, means an Irish official within the meaning of section 2(1) of the Act of 2018;
‘public official’ means—
(a) a Union official within the meaning of Article 4(4)(a)(i) of the Directive,
(b) a national official,
(c) a foreign official within the meaning of section 2(1) of the Act of 2018, or
(d) a person referred to in Article 4(4)(b) of the Directive.
(2) A word or expression that is used in this Part and that is also used in the Directive has, unless the context otherwise requires, the same meaning in this Part as it has in the Directive.”.
Fraud affecting financial interests of European Union
3. The Principal Act is amended by the substitution of the following section for section 42:
“42. (1) Subject to subsection (2), a person who intentionally commits any fraud affecting the financial interests of the European Union is guilty of an offence and is liable on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or both.
(2) Where an offence under subsection (1) relates to acts or omissions to which Article 3(2)(d) of the Directive applies, the offence is not committed unless such acts or omissions are connected with the territory of two or more Member States and involve a total damage of not less than €10,000,000.”.
Misappropriation
4. The Principal Act is amended by the insertion of the following section after section 42:
“42A. A public official who intentionally commits misappropriation is guilty of an offence and is liable on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or both.”.
Liability for offences by body corporate, etc. (Part 6)
5. The Principal Act is amended by the insertion of the following section after section 42A (inserted by section 4):
“42B. (1) Where a relevant offence is committed for the benefit of a body corporate by a relevant person and the commission of the relevant offence is attributable to the failure, by a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, to exercise, at the time of the commission of the relevant offence and in all the circumstances of the case, the requisite degree of supervision or control of the relevant person, the body corporate shall be guilty of an offence.
(2) In proceedings for an offence under subsection (1), it shall be a defence for a body corporate against which such proceedings are brought to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence.
(3) Where an offence under section 42 or 42A, or an offence of inciting, aiding and abetting, or attempting the commission of such an offence, is committed by a body corporate and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who was a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(4) Where the affairs of a body corporate are managed by its members, subsection (3) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.
(5) Subsection (1)—
(a) is without prejudice to the other circumstances, under the general law, whereby acts or omissions of a natural person are attributed to a body corporate resulting in criminal liability of that body corporate for those acts or omissions, and
(b) does not exclude criminal proceedings against natural persons who are involved as perpetrators, inciters or accessories in an offence referred to in that subsection.
(6) A person guilty of an offence under subsection (1) is liable on conviction on indictment to a fine.
(7) In this section—
‘relevant person’, in relation to a body corporate, means—
(a) a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, or
(b) an employee, subsidiary or agent of the body corporate;
‘relevant offence’ means—
(a) an offence under section 42 or 42A,
(b) a money laundering offence involving property derived from the proceeds of an offence referred to in paragraph (a), (c) or (d),
(c) a corruption offence that damages, or is likely to damage, the financial interests of the European Union, or
(d) an offence of inciting, aiding and abetting, or attempting the commission of an offence referred to in paragraph (a), (b) or (c);
‘subsidiary’, in relation to a body corporate, has the same meaning as it has in the Companies Act 2014 .”.
Amendment of section 45 of Principal Act
6. Section 45 of the Principal Act is amended—
(a) by the substitution of the following subsection for subsection (1):
“(1) An Irish citizen who engages in conduct in a place outside the State that, if engaged in in the State, would constitute an offence under section 42, 42A or 42B, or would constitute an offence of inciting, aiding and abetting, or attempting the commission of such an offence, shall be guilty of an offence.”,
(b) by the insertion of the following subsection:
“(1A) A—
(a) company formed and registered under the Companies Act 2014 , an existing company within the meaning of that Act, or any other body corporate established under the law of the State, or
(b) person who has had his or her principal residence in the State for the period of 12 months immediately preceding the doing of the act concerned,
who engages in conduct in a place outside the State that, if done in the State, would constitute—
(i) an offence under section 42, 42A or 42B, or
(ii) an offence of inciting, aiding and abetting, or attempting the commission of an offence referred to in paragraph (i),
shall be guilty of an offence.”,
and
(c) by the substitution of the following subsection for subsection (3):
“(3) A person guilty of an offence under this section is liable on conviction to the penalty to which the person would have been liable had the person engaged in the conduct that constitutes the offence in the State.”.
Amendment of section 58 of Principal Act
7. Section 58(1) of the Principal Act is amended, in paragraph (a), by the substitution of “this Act (other than Part 6)” for “this Act”.
Amendment of Principal Act – Schedule
8. The Principal Act is amended by the insertion of the text set out in the Schedule as Schedule 1A to that Act.
Amendment of Criminal Justice Act 1994
9. The Criminal Justice Act 1994 is amended, in paragraph 10 of Part 2 of Schedule 1A, by—
(a) the substitution of “section 38(1);” for “section 38(1).” in subparagraph (p), and
(b) the insertion of the following subparagraphs after subparagraph (p):
“(q) section 42(1);
(r) section 42A.”.
Amendment of Criminal Justice Act 2011
10. The Criminal Justice Act 2011 is amended, in paragraph 23 of Schedule 1, by the insertion of “42A,” after “42,”.
Amendment of European Union (Passenger Name Record Data) Regulations 2018
11. The European Union (Passenger Name Record Data) Regulations 2018 ( S.I. No. 177 of 2018 ) are amended, in paragraph 7 of Schedule 2, by the insertion of “42A,” after “42,” in the list of sections of the Principal Act.
Repeals
12. The following provisions of the Principal Act are repealed:
(a) section 41;
(b) section 46(4);
(c) section 47;
(d) Schedules 2 to 9.
Short title, collective citation and commencement
13. (1) This Act may be cited as the Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021.
(2) The Criminal Justice (Theft and Fraud Offences) Act 2001 and this Act may be cited together as the Criminal Justice (Theft and Fraud Offences) Acts 2001 and 2021.
(3) This Act shall come into operation on such day or days as the Minister for Justice may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
SCHEDULE
Section 8
“SCHEDULE 1A
DIRECTIVE (EU) 2017/1371 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 5 July 2017
DIRECTIVE 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 Regions (2 )
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 1996 (6 ) and of 19 June 1997 (7 ) (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 2988/95 (8 ) 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/EC (9 ) (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/JHA (11 ) 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 Council (15 ) 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 259/68 (17 ) (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 Council (18 ) 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.”.
1 OJ No. L198, 28.7.2017, p. 29.
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).
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).