ACT No. LIII of 2021 An ACT to further amend the Criminal Code, Cap. 9.

I assent.

(L.S.)

GEORGE VELLA

President

27th July, 2021

ACT No. LIII of 2021

An ACT to further amend the Criminal Code, Cap. 9.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows

The short title of this Act is the Criminal Code (Amendment

No. 7) Act, 2021 and this Act shall be read and construed as one with

the Criminal Code, hereinafter referred to as "the Code".

Immediately after article 310C of the Code there shall be

added the following new sub-title

"Sub-title IIIA

OF FRAUD AND COUNTERFEITING OF

NON-CASH MEANS OF PAYMENT

310D. The measures provided for in this sub-title

transpose the provisions of Directive (EU) 2019/713 of

the European Parliament and of the Council of 17 April

2019 on combating fraud and counterfeiting of non-

cash means of payment and replacing Council

Framework Decision 2001/413/JHA.

310E. For the purposes of this sub-title, unless the

context otherwise requires

(a) "non-cash payment instrument" means

a non-corporeal or corporeal protected device,

object or record, or a combination thereof, other

than legal tender, and which, alone or in

conjunction with a procedure or a set of

procedures, enables the holder or user to transfer

money or monetary value, including through

digital means of exchange;

(b) "protected device, object or record"

means a device, object or record safeguarded

against imitation or fraudulent use, for example

through design, coding or signature;

(c) "digital means of exchange" means

any electronic money as defined in article 2 of the

Financial Institutions Act or virtual currency;

(d) "virtual currency" means a digital

representation of value that is not issued or

guaranteed by a central bank or a public authority,

is not necessarily attached to a legally established

currency and does not possess a legal status of a

currency or money, but is accepted by natural or

legal persons as a means of exchange, and which

may be transferred, stored and traded

electronically;

(e) "information system" shall have the

same meaning as is assigned to it in sub-article

(1) of article 337B;

(f) "computer data" shall have the same

meaning as as is assigned to it in sub-article (1) of

article 337B;

(g) "legal person" means an entity having

legal personality under the applicable law,

excluding States or public bodies in the exercise

of state authority and public international

organisations.

310F. Any person who intentionally commits any of

the following acts shall be guilty of an offence against

this article

(a) the fraudulent use of a stolen or

otherwise unlawfully appropriated or obtained

non-cash payment instrument;

(b) the fraudulent use of a counterfeit or

falsified non-cash payment instrument;

(c) the

theft

or

other

unlawful

appropriation of a corporeal non-cash payment

instrument;

(d) the fraudulent counterfeiting or

falsification of a corporeal non-cash payment

instrument;

(e) the possession of a stolen or otherwise

unlawfully appropriated, or of a counterfeit or

falsified corporeal non-cash payment instrument

for fraudulent use;

(f) the procurement for oneself or

another, including the receipt, appropriation,

purchase, transfer, import, export, sale, transport

or distribution of a stolen, counterfeit or falsified

corporeal non-cash payment instrument for

fraudulent use;

(g) the unlawful attainment of a non-

corporeal non-cash payment instrument when this

attainment has involved the commission of at

least one of the offences referred to in sub-article

(1) of article 337C, or misappropriation of a non-

corporeal non-cash payment instrument;

(h) the fraudulent counterfeiting or

falsification of a non-corporeal non-cash payment

instrument;

(i) the holding of an unlawfully obtained,

counterfeit or falsified non-corporeal non-cash

payment instrument for fraudulent use, at least if

the unlawful origin is known at the time of the

holding of the instrument;

(j) the procurement for oneself or

another, including the sale, transfer or

distribution, or the making available, of an

unlawfully obtained, counterfeit or falsified non-

corporeal non-cash payment instrument for

fraudulent use;

(k) performing or causing a transfer of

money, monetary value or virtual currency and

thereby causing an unlawful loss of property for

another person, in order to make an unlawful gain

for the perpetrator or a third party, when such

action is intentionally committed either by

(i) without right, hindering or

interfering with the functioning of an

information system; or

(ii) without

right,

introducing,

altering,

deleting,

transmitting

or

suppressing computer data;

(l) producing, procuring for oneself or

another, including the import, export, sale,

transport or distribution, or making available a

device or an instrument, computer data or any

other means primarily designed or specifically

adapted for the purpose of committing any of the

offences referred to in paragraphs (c), (d), (g), (h)

and (k), with the intention that such means be

used.

310G. (1) Whosoever commits any offence referred

to in paragraphs (a), (b), (c), (d), (g), (h) and (l) of

article 310 shall, on conviction, be liable to

imprisonment for a term not exceeding two (2) years.

(2) Whosoever commits any offence referred to in

paragraphs (e), (f), (i) and (j) of article 310F shall, on

conviction, be liable to imprisonment for a term not

exceeding one year.

(3) Whosoever commits the offence referred to in

paragraph (k) of article 310F shall, on conviction, be

liable to imprisonment for a term not exceeding three

(3) years.

(4) Whosoever commits any offence referred to in

paragraphs (a) to (k) of article 310F within the

framework of a criminal organisation, as defined in

Council Framework Decision 2008/841/JHA of 24

October 2008 on the fight against organised crime,

shall, on conviction, be liable to imprisonment for a

term not exceeding five (5) years.

310H. (1) Whosoever aids, abets or instigates any

offence under this Sub-title shall be guilty of an offence

and shall be liable on conviction to the punishment laid

down for the offence aided, abetted or instigated and

articles 42 and 43 shall apply mutatis mutandis.

(2) An attempt to commit any offence referred to

in this Sub-title shall be punishable as a criminal

offence, and article 41 shall apply mutatis mutandis.

310I. (1) Notwithstanding any other provision of

this Code, where any offence referred to in article 310F

or in article 310H is committed for the benefit of a legal

person by any person, acting either individually or as

part of an organ of the legal person, who holds a leading

position within that legal person on the basis of one of

the following

(a) a power of representation of the legal

person;

(b) an authority to take decisions on

behalf of the legal person;

(c) an authority to exercise control within

the legal person,

said legal person who acts in that manner shall, on

conviction, be liable to a fine (multa) of not less than

twenty thousand euro (€20,000) and not more than two

hundred thousand euro (€200,000).

(2) Sub-article (1) shall apply mutatis mutandis

where the lack of supervision or control by a natural

person referred to therein has made possible the

commission of any of the offences referred to in article

310F or in article 310H for the benefit of the legal

person by a person under its authority.

(3) Liability of legal persons pursuant to sub-

a r t i c l e s (1 ) a n d ( 2 ) s h a l l n o t e x c l u d e c r i m i n a l

proceedings against natural persons who are

perpetrators or inciters of, or accessories to, any of the

offences referred to in article 310F or in article 310H.

(4) Without prejudice and in addition to any

penalty that may be imposed pursuant to the preceding

sub-articles, any legal person for whose benefit any

offence as referred to therein is committed may, on

conviction, be liable to any or all of the following

sanctions

(a) exclusion from entitlement to public

benefits or aid;

(b) temporary exclusion from access to

public funding, including tender procedures,

grants and concessions;

(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 offence.

310J. (1) Without prejudice to the provisions of

article 5, the Courts of Malta shall have jurisdiction

over the offences laid down in article 310F or article

310H where one or more of the following apply

(a) the offence is committed in whole or

in part on the territory of Malta;

(b) the offender is a Maltese national or a

permanent resident of Malta;

(c) the offender has his habitual residence

in the territory of Malta;

(d) the offence is committed for the

benefit of a legal person established in the

territory of Malta;

(e) the offence is committed against a

Maltese national or a person who is a habitual

resident in the territory of Malta.

(2) For the purposes of paragraph (a) of sub-article

(1), an offence shall be considered to have been

committed in whole or in part on the territory of Malta

w h e r e t h e o ff e n d e r c o m m i t s t h e o ff e n c e w h e n

physically present on that territory and irrespective of

whether the offence is committed using an information

system on that territory.

310K. The Minister responsible for justice may

Power to make

regulations under

make regulations to give better effect to the provisions

this Sub-title.

of this sub-title.".

Passed by the House of Representatives at Sitting No. 488 of the

13th July, 2021.

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€0.72