First Previous (PART 5 Counterfeiting) Next (PART 7 Investigation of Offences)

50 2001

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT, 2001

PART 6

Convention on Protection of European Communities' Financial Interests

Interpretation (Part 6).

40. —(1) In this Part—

“active corruption” has the meaning given to it by Article 3.1 of the First Protocol;

“Community official” has the meaning given to it by Article 1.1(b) of the First Protocol;

“Convention” means the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities' financial interests done at Brussels on 26 July 1995;

“First Protocol” means the Protocol drawn up on the basis of Article K.3 of the Treaty on European Union to the Convention on the protection of the European Communities' financial interests done at Brussels on 27 September 1996;

“fraud affecting the European Communities' financial interests” has the meaning given to it by Article 1.1 of the Convention;

“money laundering” has the meaning given to it by section 31 (as substituted by section 21 of this Act) of the Criminal Justice Act, 1994 ;

“national official”, for the purposes of the application in the State of Article 1.1(c) of the First Protocol, means any one of the following persons:

(a) a Minister of the Government or Minister of State;

(b) an Attorney General who is not a member of Dáil Éireann or Seanad Éireann;

(c) the Comptroller and Auditor General;

(d) a member of Dáil Éireann or Seanad Éireann;

(e) a judge of a court in the State;

(f) the Director of Public Prosecutions;

(g) any other holder of an office who is remunerated wholly or partly out of moneys provided by the Oireachtas;

(h) any person employed by a person referred to in any of paragraphs (d) to (g) in the performance of that person's official functions; and

(i) a director of, or an occupier of a position of employment in, a public body as defined in the Ethics in Public Office Act, 1995 ,

and, for the purposes of the application in the State of Article 4.2 of the First Protocol, any one of the following persons shall be treated as a national official:

(i) a member of the Commission of the European Communities;

(ii) a member of the European Parliament;

(iii) a member of the Court of Justice of the European Communities;

(iv) a member of the Court of Auditors of the European Communities;

“official” has the meaning given to it by Article 1.1(a) of the First Protocol;

“passive corruption” has the meaning given to it by Article 2.1 of the First Protocol;

“Protocol on Interpretation” means the Protocol drawn up on the basis of Article K.3 of the Treaty on European Union, on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the protection of the European Communities' financial interests done at Brussels on 29 November 1996; and

“Second Protocol” means the Protocol drawn up on the basis of Article K.3 of the Treaty on European Union, to the Convention on the protection of the European Communities' financial interests done at Brussels on 19 June 1997.

(2) For the purposes of sections 42(c) and 45(1)(a)

(a) a person benefits from fraud or money laundering if he or she obtains property as a result of or in connection with the commission of an offence under either of those provisions, and

(b) a person derives a pecuniary advantage from fraud or money laundering if he or she obtains a sum of money as a result of or in connection with the commission of such an offence.

Convention and Protocols to have force of law.

41. —(1) Subject to the provisions of this Part, the Convention (other than Article 7.2), the First Protocol, the Protocol on Interpretation (other than Article 2(b)) and the Second Protocol (other than Articles 8 and 9) shall have the force of law in the State and judicial notice shall be taken of them.

(2) Judicial notice shall also be taken of any ruling or decision of, or expression of opinion by, the Court of Justice of the European Communities on any question as to the meaning or effect of any provision of the Convention, the First Protocol, the Protocol on Interpretation and the Second Protocol.

(3) For convenience of reference there are set out in Schedules 2 to 9 respectively—

(a) the text in the English language of the Convention;

(b) the text in the Irish language of the Convention;

(c) the text in the English language of the First Protocol;

(d) the text in the Irish language of the First Protocol;

(e) the text in the English language of the Protocol on Interpretation;

(f) the text in the Irish language of the Protocol on Interpretation;

(g) the text in the English language of the Second Protocol;

(h) the text in the Irish language of the Second Protocol.

Fraud affecting European Communities' financial interests.

42. —A person who—

(a) commits in whole or in part any fraud affecting the European Communities' financial interests,

(b) participates in, instigates or attempts any such fraud, or

(c) obtains the benefit of, or derives any pecuniary advantage from, any such fraud,

is guilty of an offence and is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both.

Active corruption.

43. —A person who commits active corruption is guilty of an offence and is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both.

Passive corruption.

44. —An official who commits passive corruption is guilty of an offence and is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both.

Extra-territorial jurisdiction in case of certain offences.

45. —(1) It is an offence for a person to commit fraud affecting the Communities' financial interests or to commit the offence of money laundering, or to participate in, instigate or attempt any such fraud or offence, outside the State if—

(a) the benefit of the fraud or offence is obtained, or a pecuniary advantage is derived from it, by a person within the State, or

(b) a person within the State knowingly assists or induces the commission of the fraud or offence, or

(c) the offender is an Irish citizen, a national official or a Community official working for a European Community institution or a body set up in accordance with the Treaties establishing the European Communities which has its headquarters in the State.

(2) Active or passive corruption committed by a person outside the State is an offence if—

(a) the offender is an Irish citizen, a national official or a Community official working for a European Community institution or a body set up in accordance with the Treaties establishing the European Communities which has its headquarters within the State, or

(b) in the case of active corruption, it is directed against an official, or a member of one of the institutions mentioned in paragraphs (i) to (iv) of the definition of “national official” in section 40 , who is an Irish citizen.

(3) A person guilty of an offence under this section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both.

Restriction on certain proceedings.

46. —(1) Where a person is charged with an offence under section 45 , no further proceedings (other than a remand in custody or on bail) shall be taken except by or with the consent of the Director of Public Prosecutions.

(2) Where the Director of Public Prosecutions considers that another member state of the European Union has jurisdiction to try a person charged with an offence under section 45 , the Director shall cooperate with the appropriate authorities in the member state concerned with a view to centralising the prosecution of the person in a single member state where possible.

(3) Proceedings for an offence to which this section applies may be taken in any place in the State, and the offence may for all incidental purposes be treated as having been committed in that place.

(4) Proceedings shall not be taken under section 38 of the Extradition Act, 1965, in respect of an act that is an offence under both that section and section 45 of this Act.

Extradition for revenue offences.

47. —For the purposes of the application in the State of Article 5.3 of the Convention, as applied by Article 12.1 of the Second Protocol, extradition for the offence of fraud against the European Communities' financial interests or money laundering shall not be refused, notwithstanding section 13 of the Extradition Act, 1965, solely on the ground that the offence constitutes a revenue offence as defined in that Act.