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2021 CRIMINAL JUSTICE (THEFT AND FRAUD

FENCES) (AMENDMENT) ACT 2021 CONTENTS

1. Definition
2. Interpretation (Part 6)
3. Fraud affecting financial interests

European Union

1. Misappropriation
2. Liability for

fences by body corporate, etc. (Part 6) 6. Amendment

section 45

Principal Act 7. Amendment

section 58

Principal Act 8. Amendment

Principal Act - Schedule 9. Amendment

Criminal Justice Act 1994 10. Amendment

Criminal Justice Act 2011 11. Amendment

European Union (Passenger Name Record Data) Regulations 2018

1. Repeals
2. Short title, collective citation and commencement SCHEDULE Acts Referred to Companies Act 2014 (No. 38) Criminal Justice (Corruption

fences) Act 2018 (No. 9) Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (No. 6) Criminal Justice (Theft and Fraud

fences) Act 2001 (No. 50) Criminal Justice Act 1994 (No. 15) Criminal Justice Act 2011 (No. 22) Number 2

2021 CRIMINAL JUSTICE (THEFT AND FRAUD

FENCES) (AMENDMENT) ACT 2021 An Act to give further effect to Directive (EU) 2017/1371

the European Parliament and

the Council

5 July 20171 on the fight against fraud to the Union’s financial interests by means

criminal law; for that purpose to amend the Criminal Justice (Theft and Fraud

fences) Act 2001 and other enactments; and to provide for related matters. [18th March , 2021] Be it enacted by the Oireachtas as follows: Definition 1. In this Act “Principal Act” means the Criminal Justice (Theft and Fraud

fences) Act 2001 . Interpretation (Part 6) 2. The Principal Act is amended by the substitution

the following section for section 40: “40.

2018’ means the Criminal Justice (Corruption

fences) Act 2018 ; ‘corruption

fence’ means an

fence under section 5

the Act

2018; ‘Directive’ means Directive (EU) 2017/1371

the European Parliament and

the Council

5 July 2017 on the fight against fraud to the Union’s financial interests by means

criminal law, the text

which is, for convenience

reference, set out in Schedule 1A; ‘fraud affecting the financial interests

the European Union’ has the same meaning as ‘fraud affecting the Union’s financial interests’ in Article 3

the Directive; ‘misappropriation’ has the same meaning as it has in Article 4

the Directive; ‘money laundering

fence’ means an

fence under Part 2

the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 ; ‘national

ficial’, for the purposes

the application

Article 4

the Directive, means an Irish

ficial within the meaning

section 2

the Act

2018; ‘public

ficial’ means— (a) a Union

ficial within the meaning

Article 4

the Directive, (b) a national

ficial, (c) a foreign

ficial within the meaning

section 2

the Act

2018, or (d) a person referred to in Article 4

the Directive.

European Union 3. The Principal Act is amended by the substitution

the following section for section 42: “42.

the European Union is guilty

an

fence and is liable on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or both.

fence under subsection

the Directive applies, the

fence is not committed unless such acts or omissions are connected with the territory

two or more Member States and involve a total damage

not less than €10,000,000.”. Misappropriation 4. The Principal Act is amended by the insertion

the following section after section 42: “42A. A public

ficial who intentionally commits misappropriation is guilty

an

fence and is liable on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or both.”. Liability for

fences by body corporate, etc. (Part 6) 5. The Principal Act is amended by the insertion

the following section after section 42A (inserted by section 4): “42B.

fence is committed for the benefit

a body corporate by a relevant person and the commission

the relevant

fence is attributable to the failure, by a director, manager, secretary or other

ficer

the body corporate, or a person purporting to act in that capacity, to exercise, at the time

the commission

the relevant

fence and in all the circumstances

the case, the requisite degree

supervision or control

the relevant person, the body corporate shall be guilty

an

fence.

fence under subsection

the

fence.

fence under section 42 or 42A, or an

fence

inciting, aiding and abetting, or attempting the commission

such an

fence, is committed by a body corporate and it is proved that the

fence was committed with the consent or connivance, or was attributable to any wilful neglect,

a person who was a director, manager, secretary or other

ficer

the body corporate, or a person purporting to act in that capacity, that person shall, as well as the body corporate, be guilty

an

fence and shall be liable to be proceeded against and punished as if he or she were guilty

the first-mentioned

fence.

a body corporate are managed by its members, subsection

a member in connection with his or her functions

management as if he or she were a director or manager

the body corporate.

a natural person are attributed to a body corporate resulting in criminal liability

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

fence referred to in that subsection.

an

fence under subsection

ficer

the body corporate, or a person purporting to act in that capacity, or (b) an employee, subsidiary or agent

the body corporate; ‘relevant

fence’ means— (a) an

fence under section 42 or 42A, (b) a money laundering

fence involving property derived from the proceeds

an

fence referred to in paragraph (a), (

1. c)or (d), (
2. c)a corruption

fence that damages, or is likely to damage, the financial interests

the European Union, or (d) an

fence

inciting, aiding and abetting, or attempting the commission

an

fence 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

section 45

Principal Act 6. Section 45

the Principal Act is amended— (a) by the substitution

the following subsection for subsection

fence under section 42, 42A or 42B, or would constitute an

fence

inciting, aiding and abetting, or attempting the commission

such an

fence, shall be guilty

an

fence.”, (b) by the insertion

the following subsection: “(1A) A— (a) company formed and registered under the Companies Act 2014 , an existing company within the meaning

that Act, or any other body corporate established under the law

the State, or (b) person who has had his or her principal residence in the State for the period

12 months immediately preceding the doing

the act concerned, who engages in conduct in a place outside the State that, if done in the State, would constitute— (i) an

fence under section 42, 42A or 42B, or (ii) an

fence

inciting, aiding and abetting, or attempting the commission

an

fence referred to in paragraph (i), shall be guilty

an

fence.”, and (c) by the substitution

the following subsection for subsection

an

fence 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

fence in the State.”. Amendment

section 58

Principal Act 7. Section 58

the Principal Act is amended, in paragraph (a), by the substitution

“this Act (other than Part 6)” for “this Act”. Amendment

Principal Act - Schedule 8. The Principal Act is amended by the insertion

the text set out in the Schedule as Schedule 1A to that Act. Amendment

Criminal Justice Act 1994 9. The Criminal Justice Act 1994 is amended, in paragraph 10

Part 2

Schedule 1A, by— (a) the substitution

“section 38

the following subparagraphs after subparagraph (p): “(q) section 42

Criminal Justice Act 2011 10. The Criminal Justice Act 2011 is amended, in paragraph 23

Schedule 1, by the insertion

“42A,” after “42,”. Amendment

European Union (Passenger Name Record Data) Regulations 2018 11. The European Union (Passenger Name Record Data) Regulations 2018 ( S.I. No. 177

2018 ) are amended, in paragraph 7

Schedule 2, by the insertion

“42A,” after “42,” in the list

sections

the Principal Act. Repeals 12. The following provisions

the Principal Act are repealed: (

1. a)section 41; (
2. b)section 46

fences) (Amendment) Act 2021.

fences) Act 2001 and this Act may be cited together as the Criminal Justice (Theft and Fraud

fences) Acts 2001 and 2021.

THE EUROPEAN PARLIAMENT AND

THE COUNCIL

5 July 2017 on the fight against fraud to the Union’s financial interests by means

criminal law THE EUROPEAN PARLIAMENT AND THE COUNCIL

THE EUROPEAN UNION, Having regard to the Treaty on the Functioning

the European Union, and in particular Article 83

the draft legislative act to the national parliaments, Having regard to the opinion

the Committee

the Regions

the Union’s financial interests concerns not only the management

budget appropriations, but extends to all measures which negatively affect or which threaten to negatively affect its assets and those

the Member States, to the extent that those measures are

relevance to Union policies.

Article K.3

the Treaty on European Union, on the protection

the European Communities’ financial interests

26 July 1995

27 September 1996

29 November 1996

19 June 1997

criminal

fences and sanctions in the area

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

ten committed by organised criminal networks. On that basis, it was already recognised in the Convention that the protection

the Union’s financial interests called for the criminal prosecution

fraudulent conduct injuring those interests. In parallel, Council Regulation (EC, Euratom) No 2988/95

the Member States’ criminal law and proceedings.

the protection

the Union’s financial interests has already been the subject

harmonisation measures such as Regulation (EC, Euratom) No 2988/95. In order to ensure the implementation

Union policy in this area, it is essential to continue to approximate the criminal law

the Member States by complementing the protection

the Union’s financial interests under administrative and civil law for the most serious types

fraud-related conduct in that field, whilst avoiding inconsistencies, both within and among those areas

law.

the Union’s financial interests calls for a common definition

fraud falling within the scope

this Directive, which should cover fraudulent conduct with respect to revenues, expenditure and assets at the expense

the general budget

the European Union (the ‘Union budget’), including financial operations such as borrowing and lending activities. The notion

serious

fences against the common system

value added tax (‘VAT’) as established by Council Directive 2006/112/EC

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.

fences against the common VAT system should be considered to be serious where they are connected with the territory

two or more Member States, result from a fraudulent scheme whereby those

fences are committed in a structured way with the aim

taking undue advantage

the common VAT system and the total damage caused by the

fences is at least EUR 10 000 000. The notion

total damage refers to the estimated damage that results from the entire fraud scheme, both to the financial interests

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.

fices or agencies established pursuant to the Treaties or to other entities or persons. In the event

such shared or indirect management, the Union’s financial interests should benefit from the same level

protection as they do when under the direct management

the Commission.

this Directive, procurement-related expenditure is any expenditure in connection with the public contracts determined by Article 101

Regulation (EU, Euratom) No 966/2012

the European Parliament and

the Council

fences 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

criminal

fences against the Union’s financial interests.

ficials have a duty to exercise judgment or discretion impartially, the giving

bribes in order to influence a public

ficial’s judgment or discretion and the taking

such bribes should be included in the definition

corruption, irrespective

the law or regulations applicable in the particular

ficial’s country or to the international organisation concerned.

conduct

a public

ficial who is entrusted with the management

funds or assets, whether he or she is in charge or acts in a supervisory capacity, which types

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

criminal

fences covering such conduct.

fences

passive corruption and misappropriation, there is a need to include a definition

public

ficials covering all relevant

ficials, whether holding a formal

fice in the Union, in the Member States or in third countries. Private persons are increasingly involved in the management

Union funds. In order to protect Union funds adequately from corruption and misappropriation, the definition

‘public

ficial’ therefore needs to cover persons who do not hold formal

fice 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

such funds.

fences provided for in this Directive, the notion

intention must apply to all the elements constituting those criminal

fences. The intentional nature

an act or omission may be inferred from objective, factual circumstances. Criminal

fences which do not require intention are not covered by this Directive.

imprisonment for the commission

criminal

fences that are not

a serious nature, in cases where intent is presumed under national law.

fences against the Union’s financial interests are in practice

ten closely related to the criminal

fences covered by Article 83

the Treaty on the Functioning

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

this Directive.

fences, as defined in this Directive, which are committed on their behalf.

the Union’s financial interests throughout the Union by means

measures which should act as a deterrent, Member States should provide for certain types and levels

sanctions when the criminal

fences defined in this Directive are committed. The levels

sanctions should not go beyond what is proportionate for the

fences.

fences affecting the Union’s financial interests.

disciplinary measures or penalties other than

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

fence defined in this Directive. For other sanctions, the principle

prohibition

being tried or punished twice in criminal proceedings for the same criminal

fence (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

ficial duties, in cases where such disciplinary penalties or other measures can be applied to the persons concerned.

at least four years

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

damage or advantage is taken into account by its courts in the determination

sanctions for fraud and other criminal

fences affecting the Union’s financial interests. This Directive does not prevent Member States from providing for other elements which would indicate the serious nature

a criminal

fence, for instance when the damage or advantage is potential, but

very considerable nature. However, for

fences against the common VAT system, the threshold as

which the damage or advantage should be presumed to be considerable is, in conformity with this Directive, EUR 10 000 000. The introduction

minimum levels

maximum imprisonment sanctions is necessary in order to ensure equivalent protection

the Union’s financial interests throughout the Union. The sanctions are intended to serve as a strong deterrent for potential

fenders, with effect throughout the Union.

fence is committed within a criminal organisation as defined in Council Framework Decision 2008/841/JHA

fenders, 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

fences as defined in Framework Decision 2008/841/JHA to be punishable as a separate criminal

fence and this may lead to more severe sanctions.

perpetrators and

the proceeds stemming from illegal activities at the expense

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

fences which are committed using information and communication technology accessed from its territory.

multiple jurisdictions for cross-border criminal

fences falling under the scope

this Directive, the Member States should ensure that the principle

ne bis in idem is respected in full in the application

national law transposing this Directive.

the Union’s financial interests. In cases

criminal

fences punishable by a maximum sanction

at least four years

imprisonment, the limitation period should be at least five years from the time when the criminal

fence was committed. This should be without prejudice to those Member States which do not set limitation periods for investigation, prosecution and enforcement.

the European Parliament and

the Council

fences defined in this Directive affecting the Union’s financial interests, including exchange

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

their investigations. Such assistance should not entail the participation

the Commission in the investigation or prosecution procedures

individual criminal cases conducted by the national authorities. The Court

Auditors and the auditors responsible for auditing the budgets

the Union institutions, bodies,

fices and agencies should disclose to the European Anti-Fraud

fice (OLAF) and to other competent authorities any fact which could be qualified as a criminal

fence under this Directive, and Member States should ensure that national audit bodies within the meaning

Article 59

Regulation (EU, Euratom) No 966/2012 do the same, in accordance with Article 8

Regulation (EU, Euratom) No 883/2013.

the Union budget.

point (d)

Article 3

Directive (EU) 2015/849

the European Parliament and

the Council

the Convention should be construed as fraud affecting the Union’s financial interests as defined in Article 3 and in Article 7

this Directive or, as regards

fences against the common VAT system, as defined in Article 2

this Directive.

this Directive by the Member States includes the processing

personal data by the competent national authorities, and the exchange

such data between Member States on the one hand, and between competent Union bodies on the other. The processing

personal data at national level between national competent authorities should be regulated by the acquis

the Union. The exchange

personal data between Member States should be carried out in accordance with Directive (EU) 2016/680

the European Parliament and

the Council

fices and agencies process personal data, Regulation (EC) No 45/2001

the European Parliament and

the Council

personal data by those bodies,

fices and agencies as well as the applicable rules concerning the confidentiality

judicial investigations, should apply.

the application

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

Fundamental Rights

the European Union (the ‘Charter’) and in particular the right to liberty and security, the protection

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

innocence and the right

defence, the principles

the legality and proportionality

criminal

fences and sanctions, as well as the principle

ne bis in idem. This Directive seeks to ensure full respect for those rights and principles and must be implemented accordingly.

sums and their transfer to the Union budget, without prejudice to the relevant Union sector-specific rules on financial corrections and recovery

amounts unduly spent.

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

Articles 4 and 5

Regulation (EC, Euratom) No 2988/95.

the acts

fraud and fraud-related criminal

fences affecting the Union’s financial interests to which this Directive applies. This Directive should not create obligations regarding the application

such penalties or any other available system

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

national law transposing this Directive, Member States should, however, ensure that the imposition

criminal sanctions for criminal

fences in accordance with this Directive and

administrative measures and penalties does not lead to a breach

the Charter.

Member States to structure and organise their tax administration as they see fit to ensure the correct determination, assessment and collection

value added tax, as well as the effective application

VAT law.

the immunities contained in the TFEU, Protocol No 3 on the Statute

the Court

Justice

the European Union and Protocol No 7 on the Privileges and Immunities

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

this Directive into national law as well as in the application

national law transposing this Directive, those privileges and immunities, including the respect for the freedom

the Member’s mandate, are fully taken into account.

national criminal law on the application and execution

sentences in accordance with the concrete circumstances in each individual case.

this Directive cannot be sufficiently achieved by the Member States but can rather, by reason

its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle

subsidiarity as set out in Article 5 TEU. In accordance with the principle

proportionality as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.

Protocol No 21 on the position

United Kingdom and Ireland in respect

the area

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

this Directive.

Protocol No 21 on the position

the United Kingdom and Ireland in respect

the area

freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4

that Protocol, the United Kingdom is not taking part in the adoption

this Directive and is not bound by it or subject to its application.

Protocol No 22 on the position

Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption

this Directive and is not bound by it or subject to its application.

Auditors has been consulted and has adopted an opinion

criminal

fences 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

fences which affect those financial interests, in line with the acquis

the Union in this field. Article 2 Definitions and scope 1. For the purposes

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

the Union institutions, bodies,

fices 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

State authority and for public international organisations. 2. In respect

revenue arising from VAT own resources, this Directive shall apply only in cases

serious

fences against the common VAT system. For the purposes

this Directive,

fences against the common VAT system shall be considered to be serious where the intentional acts or omissions defined in point (d)

Article 3

two or more Member States

the Union and involve a total damage

at least EUR 10 000

2. The structure and functioning

the tax administration

the Member States are not affected by this Directive. TITLE II CRIMINAL

FENCES 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

fence when committed intentionally. 2. For the purposes

this Directive, the following shall be regarded as fraud affecting the Union’s financial interests: (a) in respect

non-procurement-related expenditure, any act or omission relating to: (i) the use or presentation

false, incorrect or incomplete statements or documents, which has as its effect the misappropriation or wrongful retention

funds or assets from the Union budget or budgets managed by the Union, or on its behalf; (ii) non-disclosure

information in violation

a specific obligation, with the same effect; or (iii) the misapplication

such funds or assets for purposes other than those for which they were originally granted; (b) in respect

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

false, incorrect or incomplete statements or documents, which has as its effect the misappropriation or wrongful retention

funds or assets from the Union budget or budgets managed by the Union, or on its behalf; (ii) non-disclosure

information in violation

a specific obligation, with the same effect; or (iii) the misapplication

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

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

false, incorrect or incomplete statements or documents, which has as its effect the illegal diminution

the resources

the Union budget or budgets managed by the Union, or on its behalf; (ii) non-disclosure

information in violation

a specific obligation, with the same effect; or (iii) misapplication

a legally obtained benefit, with the same effect; (d) in respect

revenue arising from VAT own resources, any act or omission committed in cross-border fraudulent schemes in relation to: (i) the use or presentation

false, incorrect or incomplete VAT-related statements or documents, which has as an effect the diminution

the resources

the Union budget; (ii) non-disclosure

VAT-related information in violation

a specific obligation, with the same effect; or (iii) the presentation

correct VAT-related statements for the purposes

fraudulently disguising the non-payment or wrongful creation

rights to VAT refunds. Article 4 Other criminal

fences affecting the Union’s financial interests 1. Member States shall take the necessary measures to ensure that money laundering as described in Article 1

Directive (EU) 2015/849 involving property derived from the criminal

fences covered by this Directive constitutes a criminal

fence. 2. Member States shall take the necessary measures to ensure that passive and active corruption, when committed intentionally, constitute criminal

fences. (a) For the purposes

this Directive, ‘passive corruption’ means the action

a public

ficial who, directly or through an intermediary, requests or receives advantages

any kind, for himself or for a third party, or accepts a promise

such an advantage, to act or to refrain from acting in accordance with his duty or in the exercise

his functions in a way which damages or is likely to damage the Union’s financial interests. (b) For the purposes

this Directive, ‘active corruption’ means the action

a person who promises,

fers or gives, directly or through an intermediary, an advantage

any kind to a public

ficial 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

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

fence. For the purposes

this Directive, ‘misappropriation’ means the action

a public

ficial who is directly or indirectly entrusted with the management

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

this Directive, ‘public

ficial’ means: (a) a Union

ficial or a national

ficial, including any national

ficial

another Member State and any national

ficial

a third country: (i)‘Union

ficial’ means a person who is: —an

ficial or other servant engaged under contract by the Union within the meaning

the Staff Regulations

ficials and the Conditions

Employment

Other Servants

the European Union laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68

ficials or other servants. Without prejudice to the provisions on privileges and immunities contained in Protocols No 3 and No 7, Members

the Union institutions, bodies,

fices and agencies, set up in accordance with the Treaties and the staff

such bodies shall be assimilated to Union

ficials, inasmuch as the Staff Regulations do not apply to them; (ii)‘national

ficial’ shall be understood by reference to the definition

‘

ficial’ or ‘public

ficial’ in the national law

the Member State or third country in which the person in question carries out his or her functions. Nevertheless, in the case

proceedings involving a national

ficial

a Member State, or a national

ficial

a third country, initiated by another Member State, the latter shall not be bound to apply the definition

‘national

ficial’ except insofar as that definition is compatible with its national law. The term ‘national

ficial’ shall include any person holding an executive, administrative or judicial

fice at national, regional or local level. Any person holding a legislative

fice at national, regional or local level shall be assimilated to a national

ficial; (b) any other person assigned and exercising a public service function involving the management

or decisions concerning the Union’s financial interests in Member States or third countries. TITLE III GENERAL PROVISIONS RELATING TO FRAUD AND OTHER CRIMINAL

FENCES 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

any

the criminal

fences referred to in Articles 3 and 4 are punishable as criminal

fences. 2. Member States shall take the necessary measures to ensure that an attempt to commit any

the criminal

fences referred to in Article 3 and Article 4

fence. Article 6 Liability

legal persons 1. Member States shall take the necessary measures to ensure that legal persons can be held liable for any

the criminal

fences referred to in Articles 3, 4 and 5 committed for their benefit by any person, acting either individually or as part

an organ

the legal person, and having a leading position within the legal person, based on: (a) a power

representation

the legal person; (b) an authority to take decisions on behalf

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

supervision or control by a person referred to in paragraph 1

this Article has made possible the commission, by a person under its authority,

any

the criminal

fences referred to in Article 3, 4 or 5 for the benefit

that legal person. 3. Liability

legal persons under paragraphs 1 and 2

this Article shall not exclude the possibility

criminal proceedings against natural persons who are perpetrators

the criminal

fences referred to in Articles 3 and 4 or who are criminally liable under Article

1. Article 7 Sanctions with regard to natural persons
2. As regards natural persons, Member States shall ensure that the criminal

fences 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

fences 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

fences referred to in Articles 3 and 4 are punishable by a maximum penalty

at least four years

imprisonment when they involve considerable damage or advantage. The damage or advantage resulting from the criminal

fences referred to in points (a), (b) and (c)

Article 3

fences referred to in point (d)

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

at least four years

imprisonment in other serious circumstances defined in their national law. 4. Where a criminal

fence referred to in point (a), (b) or (c)

Article 3

less than EUR 10 000 or an advantage

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

disciplinary powers by the competent authorities against public

ficials. Article 8 Aggravating circumstance Member States shall take the necessary measures to ensure that where a criminal

fence referred to in Article 3, 4 or 5 is committed within a criminal organisation in the sense

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

commercial activities; (

1. d)placing under judicial supervision; (
2. e)judicial winding-up; (
3. f)temporary or permanent closure

establishments which have been used for committing the criminal

fence. Article 10 Freezing and confiscation Member States shall take the necessary measures to enable the freezing and confiscation

instrumentalities and proceeds from the criminal

fences referred to in Articles 3, 4 and 5. Member States bound by Directive 2014/42/EU

the European Parliament and

the Council

fences referred to in Articles 3, 4 and 5 where: (a) the criminal

fence is committed in whole or in part within its territory; or (b) the

fender is one

its nationals. 2. Each Member State shall take the necessary measures to establish its jurisdiction over the criminal

fences referred to in Articles 3, 4 and 5 where the

fender is subject to the Staff Regulations at the time

the criminal

fence. 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

fences referred to in Article 3, 4 or 5 which have been committed outside its territory in any

the following situations: (a) the

fender is a habitual resident in its territory; (b) the criminal

fence is committed for the benefit

a legal person established in its territory; or (c) the

fender is one

its

ficials who acts in his or her

ficial duty. 4. In cases referred to in point (b)

paragraph 1, Member States shall take the necessary measures to ensure that the exercise

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

fence was committed, or a denunciation from the State

the place where the criminal

fence was committed. Article 12 Limitation periods for criminal

fences 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

criminal

fences referred to in Articles 3, 4 and 5 for a sufficient period

time after the commission

those criminal

fences, in order for those criminal

fences to be tackled effectively. 2. Member States shall take the necessary measures to enable the investigation, prosecution, trial and judicial decision

criminal

fences referred to in Articles 3, 4 and 5 which are punishable by a maximum sanction

at least four years

imprisonment, for a period

at least five years from the time when the

fence was committed. 3. By way

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

specified acts. 4. Member States shall take the necessary measures to enable the enforcement

: (a) a penalty

more than one year

imprisonment; or alternatively (b) a penalty

imprisonment in the case

a criminal

fence which is punishable by a maximum sanction

at least four years

imprisonment, imposed following a final conviction for a criminal

fence referred to in Article 3, 4 or 5, for at least five years from the date

the final conviction. That period may include extensions

the limitation period arising from interruption or suspension. Article 13 Recovery This Directive shall be without prejudice to the recovery

the following:

sums unduly paid in the context

the commission

the criminal

fences referred to in point (a), (b) or (c)

Article 3

any VAT not paid in the context

the commission

the criminal

fences referred in point (d)

Article 3(2), or in Article 4 or 5.

Article 14 Interaction with other applicable legal acts

the Union The application

administrative measures, penalties and fines as laid down in Union law, in particular those within the meaning

Articles 4 and 5

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

national provisions implementing this Directive do not unduly affect the proper and effective application

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,

fices 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

fice and the Commission shall, within their respective competences, cooperate with each other in the fight against the criminal

fences 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

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

fences 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

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

information, whether by the Commission or by another Member State to which the information is passed. 3. The Court

Auditors and auditors responsible for auditing the budgets

the Union institutions, bodies,

fices 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

which they become aware when carrying out their duties, which could be qualified as a criminal

fence referred to in Article 3, 4 or 5. Member States shall ensure that national audit bodies do the same. Article 16 Replacement

the Convention on the protection

the European Communities’ financial interests The Convention on the protection

the European Communities’ financial interests

26 July 1995, including the Protocols thereto

27 September 1996,

29 November 1996 and

19 June 1997, is hereby replaced by this Directive for the Member States bound by it, with effect from 6 July

1. For the Member States bound by this Directive, references to the Convention shall be construed as references to this Directive. Article 17 Transposition
2. 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

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

their

ficial 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

the main provisions

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

fences 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

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

national law transposing this Directive on the prevention

fraud to the Union’s financial interests. 4. The Commission shall, by 6 July 2022 and on the basis

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

the Union’s financial interests, whether: (a) the threshold indicated in Article 2

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

its publication in the

ficial Journal

the European Union. Article 20 Addressees This Directive is addressed to the Member States in accordance with the Treaties. Done at Strasbourg, 5 July

1. For the European Parliament For the Council The President The President A. TAJANI M. MAASIKAS.”. 1 OJ No. L198, 28.7.2017, p.
2. 2 OJ C 391, 18.12.2012, p.
3. 3 Position

the European Parliament

16 April 2014 (not yet published in the

ficial Journal) and position

the Council at first reading

25 April 2017 (OJ C 184, 9. 6.2017, p.1). Position

the European Parliament

5 July 2017 (not yet published in the

ficial Journal). 4 OJ C 316, 27.11.1995, p.

1. 5 OJ C 313, 23.10.1996, p.
2. 6 OJ C 151, 20.5.1997, p.
3. 7 OJ C 221, 19.7.1997, p.
4. 8 Council Regulation (EC, Euratom) No 2988/95

18 December 1995 on the protection

the European Communities’ financial interests (OJ L 312, 23.12.1995, p. 1). 9 Council Directive 2006/112/EC

28 November 2006 on the common system

value added tax (OJ L 347, 11.12.2006, p. 1). 10 Regulation (EU, Euratom) No 966/2012

the European Parliament and

the Council

25 October 2012 on the financial rules applicable to the general budget

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

24 October 2008 on the fight against organised crime (OJ L 300, 11.11.2008, p. 42). 12 Regulation (EU, Euratom) No 883/2013

the European Parliament and

the Council

11 September 2013 concerning investigations conducted by the European Anti-Fraud

fice (OLAF) and repealing Regulation (EC) No 1073/1999

the European Parliament and

the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1). 13 Directive (EU) 2015/849

the European Parliament and

the Council

20 May 2015 on the prevention

the use

the financial system for the purposes

money laundering or terrorist financing, amending Regulation (EU) No 648/2012

the European Parliament and

the Council, and repealing Directive 2005/60/EC

the European Parliament and

the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73). 14 Directive (EU) 2016/680

the European Parliament and

the Council

27 April 2016 on the protection

natural persons with regard to the processing

personal data by competent authorities for the purposes

the prevention, investigation, detection or prosecution

criminal

fences or the execution

criminal penalties, and on the free movement

such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89). 15 Regulation (EC) No 45/2001

the European Parliament and

the Council

18 December 2000 on the protection

individuals with regard to the processing

personal data by the Community institutions and bodies and on the free movement

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.
2. 18 Directive 2014/42/EU

the European Parliament and

the Council

3 April 2014 on the freezing and confiscation

instrumentalities and proceeds

crime in the European Union (OJ L 127, 29.4.2014, p. 39). Privacy Statement Accessibility European Legislation Identifier (PDF) Open Data License Ráiteas Príobháideachais Inrochtaineacht Aitheantóir Eorpach Reachtaíochta (ELI) Ceadúnas Sonraí Oscailte Liosta Fianán © Government

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