Dáil Éireann díospóireacht -
Tuesday, 5 Dec 2023

Vol. 1047 No. 1

Opt-in under Protocol No. 21: Motion

Minister of State at the Department of Justice (Deputy James Browne)

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion under 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 Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure:

Proposal for a Decision of the European Parliament and of the Council amending Directive 2014/62/EU as regards certain reporting requirements, a copy of which was laid before Dáil Éireann on 10th November, 2023.

I welcome the opportunity to address the Dail on Ireland's opt-in to a decision amending Directive 2014/62/EU as regards certain reporting requirements. Ireland has an option, provided for in Article 3.1 and 4a of Protocol 21 annexed to the Treaty of Lisbon, to opt in to individual proposals in the area of freedom, security and justice. The protocol provides that Ireland has three months from the date a proposal is presented to the Council to notify the Presidency of the Council of its wish to take part in the negotiation, adoption and application of the measure. The three-month period for this proposal ends on 17 January 2024. The exercise of this opt-in is subject to the approval of both Houses of the Oireachtas, so it has been necessary to bring this proposal to the Houses as swiftly as possible before they rise for Christmas in order to meet the deadline.

Ireland can also accept a proposal at any time after it has been adopted, but in such cases Ireland will not have been in a position to vote on the final content of the proposal. It must also be noted that Ireland made a declaration appended to the Treaty of Lisbon of its intention to opt in to measures in the area of freedom, security and justice to the maximum extent possible.

On 17 October last, the European Commission put forward a proposal to amend Directive 2014/62/EU as regards certain reporting requirements. This current proposal is a minor technical amendment to the existing directive, which seeks to remove the obligation to report certain statistical data to the Commission as part of a wider imperative to rationalise reporting requirements.

The primary objective of the underlying original Directive 2014/62/EU is to protect the euro and other currencies against counterfeiting by criminal law. It establishes minimum rules concerning the definition of criminal offences and sanctions in the area of counterfeiting of the euro and other currencies as well as common provisions to strengthen the fight against those offences and to improve investigation of them and to ensure better co-operation against counterfeiting.

The main elements of the existing directive include the criminalisation of the "production" and "distribution" of counterfeit currencies as well as "preparatory offences" like the production of security features, the provisions on penalties, and the principle of territoriality and the extraterritorial jurisdiction. It also includes a provision on the use of certain investigative tools and a provision ensuring that the national analysis centres, NACs, and the coin national analysis centres, CNACs, can analyse euro counterfeits during ongoing judicial proceedings. The effective transposition of these elements into national legislation is essential to achieve the objectives of the directive. No substantive element of this existing directive is affected by the minor technical amendment proposed in this new measure. Rather, the directive requires member states to transmit to the Commission certain statistical data relating to the number of offences concerning counterfeit notes and coins and the number of persons prosecuted and sentenced.

Article 11 of Directive 2014/62/EU obliges that member states, at least every two years, transmit data to the Commission on the number of offences laid down in Articles 3 and 4 and the number of persons prosecuted for and convicted of the offences laid down in Articles 3 and 4. This proposal would abolish the obligation for member states' competent authorities to transmit statistical data to the Commission.

As the size and trends of euro counterfeiting are well documented and known to the competent national authorities, the obligation to report statistical data on criminal proceedings therefore is not essential to ensure that the objectives of the directive are achieved and monitored. The views of the Office of the Attorney General have been sought on this measure. The legal advice states that there are no legal or constitutional obstacles to Ireland electing to opt in, participate and be bound by this measure pursuant to Protocol 21. It states, in fact, that not opting in would actually have greater implications for the State. This measure repeals and deletes a reporting obligation upon the State. If the State does not opt in to this repeal, it would still be obliged to collate and transmit statistics for which the Commission has no use.

This proposal is part of a first package of measures to rationalise reporting requirements and is a step in a process looking comprehensively at existing reporting requirements, with a view to assess their continued relevance and make them more efficient.

Under the regulatory fitness and performance programme, REFIT, the Commission ensures that its legislation is fit for purpose and targeted to the needs of stakeholders and minimises burdens while achieving its objectives. This proposal is therefore part of the REFIT programme, reducing the complexity of reporting burdens arising from the EU legal environment. While certain reporting requirements are essential, they need to be as efficient as possible, avoiding overlaps, removing unnecessary burdens and using, as much as possible, digital and interoperable solutions. The current proposal rationalises reporting requirements, thus making the achievement of the objectives of legislation more efficient and less burdensome for public authorities. The Government has no hesitation in commending this motion to the House.

Deputy Aengus Ó Snodaigh

Fáiltím i gcónaí roimh an deis díospóireacht a bheith againn ar mholtaí ón Aontas Eorpach, má tá gá leo, ach go háirithe nuair a táimid ag déileáil le ceisteanna maidir le dlí agus cirt. Tá difríocht ann idir muidne agus na tíortha eile san Aontas Eorpach ó thaobh an cóid ar atá an dlí bunaithe sa tír seo, i gcomparáid leis an tslí a dhéanann siad dlí i dtíortha na hEorpa. Den chuid is mó is ag caint ar tíortha san Aontas Eorpach atá mé seachas an Eoraip. Sin an fáth nach raibh muid agus nár chóir dúinn a bheith go hiomlán isteach sa chóras Schengen ach gur féidir linn dul isteach nó amach mar is gá.

Sa chás seo táimid ag déileáil le ceist maidir le rialacha a bhaineann le bréagairgead atá á chruthú nó á úsáid san Aontas Eorpach. Roimhe seo bhí an tAontas ag déanamh cinnte go raibh taifead iomlán ar na slite difriúla a bhí an bréagairgead seo ag tarlú, na cúiseanna a bhí tógtha i leith daoine sna ballstáit difriúla agus an cur chuige ina dhiadh sin. Tá gá leis mar sin. Níor thuig mé, ón méid a bhí agam, cad go díreach a bhí sa doiciméad seo. Ghlac mé leis nach rud mór a bhí i gceist agus tá an ceart ag an Aire Stáit sa mhéid a dúirt sé linn; nach ceist mór é. Fós féin, is ceart go mbeadh an díospóireacht ann.

The debates are welcome to discuss EU proposals in certain areas. This is an important topic, albeit quite a minor amendment in the scale of things and I will come back to that point in a minute. According to the briefing, the primary objective of Directive 2014/62/EU (Appendix 2) is to protect the euro and other currencies within the European Union - and other currencies to which we are tied as a world currency - against counterfeiting by criminal law. It establishes minimum rules concerning the definition of criminal offences and sanctions in the area of counterfeiting of the euro and other currencies as well as common provisions to strengthen the fight against those offences and to improve investigation of them, and to ensure better cooperation against counterfeiting.

The directive covers production, distribution and preparation of counterfeit currencies. It also enables the relevant authorities to analyse relevant materials during ongoing trials. Counterfeiting currency on a massive scale is of course increasingly complex, with the introduction of many new security features. It makes it a lot more difficult for those counterfeiters to carry out their actions. The idea always has been to thwart them and to make it more difficult and less beneficial to them to carry out their criminal acts.

At the same time, it has been said that more quick and opportunistic crimes, involving counterfeit money circulating into retail, is happening across the European Union, although from what I can gather from the notes supplied, it is not at a scale we need to report. Perhaps it is not at a scale that needs to be reported in the fashion that was expected in 2014 when that provision was put in to the directive.

I found the following statement from the Canadian Department of Justice to be useful on recent developments in terms of counterfeiting. It states:

During the last two decades, with the spread of new digital print technologies, counterfeiting has again shifted. Although the quality of the end-product is highly variable, the use of scanners, colour printers, and colour copiers mean that counterfeiting is once more a crime of opportunity. Of course, sophisticated groups still do get involved from time to time. As before, they use expensive equipment to simulate intaglio printing, and employ long-distance wholesale distribution networks to move large batches of bills away from the point of production. But more and more instances of counterfeiting are the work of amateurs who print small sums using easy-to-access technology, and directly distribute them into retail trade. So far, although not enough to threaten the integrity of national currencies, at least of the major countries, opportunistic counterfeiting is sufficient of a problem to force governments to engage in an ever-more expensive technological arms race against counterfeiters.

The directive mentions the national analysis centres which examine currency and our Central Bank hosts such a centre. The website contains guidance on counterfeiting and how to check for fake notes, and it seems a lot of this will likely be caught at retail outlets, especially if our retail staff are trained and understand what they are looking for. The Central Bank and local banks have a role in complying with what the directive, passed in 2014, intends.

I find this odd. This proposal seeks to abolish the obligation for member states' competent authorities to transmit statistical data to the Commission. In this day and age, I cannot understand why that would be a burden. It is simply a matter of pressing a button and sending. Yes, it has to be collected but I presume that An Garda Síochána and the analysis centre of the Central Bank would be collecting that information anyway and I presume the same would apply for all countries. Deleting it as a compulsory action that all of these analysis centres would have to take is odd, given the likelihood that the work of amateurs seems to be increasing. There is a need to keep an eye across the European Union, especially given that we have shared currencies. Many people know one side of the euro notes, but they might not know what is on the euro notes of other countries of the EU, given how widespread the euro is. There is a challenge for us. For the sake of gathering of this information and sharing it to make sure that other countries would be aware of it at least once a year, I just find it odd. However, I am not opposing this measure, if it removes an unnecessary burden, as the Minister said. No overlap was mentioned in the presentation to show that this material might be transmitted by An Garda Síochána to Europol. Perhaps that is the overlap. The statistical information here would not be necessarily information that An Garda Síochána had to hand because it is to do with convictions and evidence, so it would not come directly from An Garda Síochána but rather from the DPP.

As I said, I am not going to oppose it. It is a minor amendment. As with all of these opt-ins, it is important that we and the officials take the time to discuss them. It has been mentioned that the Attorney General did not see any problems with it. It is important that we as a State in the European Union cast our own eyes on this and as a parliament that we assert our independence in this field and take a vote, if needs be, on these issues.

Deputy Cathal Berry

I am glad to have the opportunity to make some brief comments on whether we should opt in to this EU directive and whether we should transpose it into Irish legislation. Like the previous speaker, the members of the Regional Group have no major issue with it. We are happy to support its passage for three reasons. It does at least attempt to protect further the integrity of the euro and other currencies. As a fiat currency, public confidence in these currencies is really important. When that is undermined, the entire financial system is undermined. More importantly, if somebody successfully counterfeits currencies the people who will lose out most are customers and small retailers. This House should do everything in its power to prevent that from happening.

The second reason is the question of profits made from counterfeit currencies and what those profits might be used for. Every attempt to tackle transnational crime and terrorist organisations across Europe and the world should be focused on this. We should be intervening prior to an incident happening and disrupting the financial flow of cash and the means to carry out such activities.

The third reason is that better co-ordination between EU countries is the right way to go as well. I agree with the new reporting mechanism. It is not just about prosecutions or criminalising the production and distribution, but there is also focus on attempts to do so - aiding and abetting - for example.

I welcome this proposal. I recognise the time sensitive nature of it with the deadline of 17 January, and on that basis, I am very happy to support its passage through the House.

Minister of State at the Department of Justice (Deputy James Browne)

I thank the Deputies for their contributions and support for this motion. The challenge we have in dealing with counterfeiting is that we need to have an approach that is across the European Union while also working with other international partners. As has been pointed out, the challenge is, in particular, to protect retailers and customers who often lose out and to make people aware of what is the standard for our currency so those who may not be familiar with our currency are not misled.

As I mentioned in my opening remarks, this proposal is part of a first package of measures to rationalise reporting requirements and is a step in a process that is looking comprehensively at existing reporting requirements with a view to assessing their continued relevance and making them more efficient. While certain reporting requirements are essential, they need to be as efficient as possible. This current proposal is a minor technical amendment to Directive 2014/62/EU, which seeks to remove the obligation to report certain statistical data to the Commission as part of a wider imperative to rationalise reporting requirements. As the legal advice states, not opting in would have greater implications for the State. This measure repeals and deletes a reporting obligation upon the State and if the State does not opt into this repeal, it would still be obliged to collate and transmit statistics for which the Commission has no use.

For all of those reasons, I thank the Deputies for their support and commend the motion to the House.

Question put and agreed to.