The Government is going to approve this Monday in the Council of Ministers the transposition of three European directives for the fight against fraud and counterfeiting of means of payment other than cash, against market abuse as well as on the exchange of information on criminal records in the European Union. The most relevant thing is that the new regulations facilitate the fight against cybercrime and penalize the fraudulent use of new means of payment, that is, from the use of payment applications through mobile phones to the use of currencies. virtual currencies, so that the focus is also on cryptocurrencies.
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Cybercrime has exploded in our country. According to the VIII Report on Cybercrime in Spain 2020, prepared by the Ministry of the Interior, cybercrime has increased its weight within the overall criminality to 16.3% of all criminal offenses, compared to 4.6% they represented in 2016. Last year 287,963 alleged criminal acts related to information and communication technologies were registered, which represents an increase of 31.9% compared to 2019. Of the total known cybercrimes in 2020, 89.6% They were scams through computer frauds (scams), followed at a long distance by threats and coercion on the Internet, which only represented 4.9%.
Faced with this avalanche of scams, the Ministry of Justice adapts the Spanish regulations to the European framework with the transposition of three directives through a Draft Law- Two of these directives will involve modifications of the Penal Code in areas of economic crime. The objective is to adapt the regulation to new forms of crime and to contribute to the harmonization of the legal systems of the different EU states.
The first directive that is transposed is 2019/713, which is fundamentally an instrument for the fight against cybercrime, especially that which refers to digital fraud, with special attention to the fraudulent use of new means of payment. These new means of payment include the use of payment applications through mobile phones, electronic wallets or the use of virtual currencies or cryptocurrencies such as bitcoin.
Although cryptocurrencies have been included, sources familiar with the measure explain that these digital currencies “are not officially recognized as such in our country, nor in the EU, although there are people who use them, as they could use jewelry or anything else as a means. of unofficial payment. The Directive expressly says that it only applies to virtual currencies that are used as a means of payment, considering the possibility that in the future the States will issue or officially recognize them through their national banks or competent authorities. “.
As for the means of payment, you just have to take into account how online payments have grown to verify the need for this regulation. Electronic commerce already accounts for 7.4% of total commerce, when 10 years ago they only reached 0.7%, according to the CNMC. In 2020, 51.6 billion euros were spent on electronic commerce, 5.8% more than the previous year. A lot of money moves with these new payment formulas, you just have to see the dimension that tools such as the Bizum application have adopted, the most accepted by Spanish banks: 18 million users. Since its launch in 2016, more than 684 million operations have already been carried out that have moved more than 34.3 billion euros, according to those responsible for the application.
With this measure, the Government seeks to strengthen the fight against crimes related to fraud and counterfeiting, a new crime with a significant cross-border dimension that is accentuated by its digital nature, which requires a common response at the European level. The reform mainly affects arts. 248 and 399 bis of the Penal Code where an adaptation of the wording of the rates to these new means of payment is made, as well as the introduction of some new more specific criminal modalities required by the Directive itself.
Another of the European directives that are transposed is 2014/57, on criminal sanctions applicable to market abuse. This Directive aims to fight against economic corruption and, more specifically, against anti-competitive practices. It punishes the abuse of the market that occurs through the use of privileged information, this is what is known as “insider trading”, a practice that threatens the transparency and security of financial markets.
To fully comply with the provisions of this Directive, the Executive must carry out a reform of the Criminal Code in its article 285, in order to equalize the penalties provided for all those who make use of privileged information, regardless of whether they have a certain position or exercise a certain profession, that is, the penalties are equated above, disappearing the reduction for the so-called secondary “insider” of section 5 of article 285.
Finally, the transposition of the European Directive 2019/884 regarding the exchange of information on third-country nationals and the European Criminal Record Information System (ECRIS) is also carried out. With the transposition of this Directive, it is intended to take a further step in the development of the European information exchange system for the prosecution of transnational crime.
The objective is to promote and expedite legal cooperation between countries in the fight against crime, since it facilitates the exchange between the authorities of the States of information extracted from criminal records. The transposition of this Directive does not imply a reform in the Penal Code, but it does imply a reform of the law that currently regulates the exchange of information on criminal records in the European Union.