The Government on 20 April decided not to opt in to the proposal for a directive of the European Parliament and of the Council on the protection of the euro and other currencies against counterfeiting by criminal law.
The proposed directive is a criminal law approximation instrument proposed under article 83.1 of title V of the treaty on the functioning of the European Union. Accordingly the UK’s title V opt-in applies. The directive builds on and updates the regime put in place by previous EU legislation and in particular the Framework Decision 2000/383/JHA (“the framework decision of 2000”). For those EU member states that will be bound by its terms the proposed directive will replace the framework decision of 2000.
The stated objectives of the Commission’s proposal are to counter the divergence in levels of sanctions between member states and difficulties in cross-border judicial co-operation, which, the Commission believes, have a negative impact on the effectiveness of the Union’s policies to protect currencies, and in particular the euro, against counterfeiting. The Government agree that a proportionate criminal justice response to counterfeiting requires robust national laws and effective international co-operation at the operational level. The UK contributes to the international fight against counterfeiting through the enforcement of our very robust criminal law on counterfeiting and through our active and continuing participation in international operational co-operation.
This proposal could have unwelcome legislative consequences for the UK, particularly as regards obligations in respect of minimum penalties and jurisdiction over counterfeiting offences committed by UK nationals overseas. The former is objectionable on the grounds that it is inconsistent with previously agreed EU Council conclusions on legislation on penalties and because of the obvious threat to the exercise of judicial discretion in sentencing for counterfeiting. As regards the latter, there are strong doubts about the practicability of exercising jurisdiction over UK nationals who are accused of committing counterfeiting offences overseas.
UK enforcement experience in the area of counterfeiting suggests that, should the UK be bound by all of the obligations contained in the directive, it would have very little if any positive impact on UK enforcement or on the UK’s participation in international operational co-operation and intelligence sharing. In light of this lack of utility and the concerns expressed above, the Government have decided that the UK will not be opting in to this directive.