gg) Identity theft and other identity-related offences
Article 9(5) requires the Member States to ensure that for any offence referred to in Articles 4
and 5 which is committed by misusing the personal data of another person, with the aim of
gaining the trust of a third party, thereby causing prejudice to the rightful identity owner, this
may be regarded as aggravating circumstances unless those circumstances are already covered
by another criminal offence. The wide range of discretion has led to a wide scope of
transposition measures among Member States. BE and EL have not notified any transposition,
and there is no specific provision in CZ`s criminal legislation. The aggravation approach has
been chosen by AT, CY, ES, IE, MT, PT and SE (the latter referring to the circumstance of
"special planning"), while all other Member States refer to extra provisions for the specific
criminal offence. Among those referring to specific provisions, transposition issues can be
observed as follows: BG and NL require a special intent ("to procure a benefit" and "the aim
to disguise or misuse the identity"), DE refers only to "personal data not generally accessible",
FR refers only to the name of a person and no other personal data, LV requires "substantial
harm" caused, RO covers only the use of "a document" and requires the commission of deceit.
d) Liability of legal persons
aa) In general
Article 10(1) requires the establishment of liability of legal persons for the offences covered
by Articles 3 – 8 if the offender has a power of representation of the legal person (a), has an
authority to take decisions on behalf of the legal person (b) or has an authority to exercise
control within the legal person (c). All Member States have introduced legislation
corresponding to this Article with only the following minor issues: BG does not cover the
offence of Article 6 and HR does not refer to an offender having an authority to exercise
control within the legal person (Article 10(1)(c)).
bb) For lack of supervision or control
Article 10(2) requires Member States to introduce liability of legal persons when any offence
referred to in Articles 3 – 8 has been allowed by the lack of supervision or control by a person
referred to in Article 10(1). While almost all Member States comply with this provision, the
information provided by LU was not conclusive and BG lacks a reference to the commission
of an offence which falls under Article 6.
e) Sanctions against legal persons
aa) Mandatory sanctions
Article 11(1) of the Directive requires Member States to provide for criminal or non-criminal
fines as effective, proportionate and dissuasive sanctions for legal persons. All Member States
have notified complying national measures except for IE and UK. In these two countries, the
maximum amount of possible fines remains undetermined due to the lack of concrete
legislative provisions. Thus, neither the effectiveness nor the proportionality nor the
dissuasiveness of the respective fines can be assessed.
bb) Optional sanctions
Article 11(1) continues with a list of possible options of additional sanctions for legal persons.
These are: exclusion from entitlement to public benefits or aid (opted for by CY, CZ, EL, ES,
HR, HU, LU, MT, PL, PT and SK), temporary or permanent disqualification from the practice
of commercial activities (AT, BE, CY, CZ, EL, ES FR, HR, HU, IT, LT, LV, MT, PL, PT,
RO, SE, SI and SK), the placing under judicial supervision (CY, ES, FR, MT, PT and RO),
judicial winding-up (CY, CZ, EL, ES, FR, HR, HU,LT, LU, LV, MT, PT, RO, SI and SK)
and the temporary or permanent closure of establishments which have been used for
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