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Lasagni_Giulia_sw.jpg Giulia Lasagni / Mirandola_Sofia_sw.jpg Sofia Mirandola

The European ne bis in idem at the Crossroads of Administrative and Criminal Law

13 September 2019 // english

This article discusses the recent developments in the case laws of the European Courts on the principle of ne bis in idem at the interface between criminal and administrative law, in particular with regard to the legitimacy of double-track enforcement systems. It is argued that both, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), have aligned not only in lowering their previously more protective standards, but also in laying down new rules that, though partially converging, remain highly unclear. Through an analysis of the case law following the ECtHR’s judgment in A and B v Norway and the three CJEU 2018 decisions in Menci, Garlsson and Di Puma and Zecca, it is demonstrated that the uncertainty generated as to the precise conditions under which dual criminal and administrative proceedings are permissible leads to unforeseeable outcomes. The potential consequences, most importantly, also ... Read more

Bachmaier_Lorena 2018-2_bw.jpg Prof. Dr. Lorena Bachmaier

Compliance with the Rule of Law in the EU and the Protection of the Union’s Budget
Further reflections on the Proposal for the Regulation of 18 May 2018

28 August 2019 (updated 6 days, 4 hours ago) // english

Strengthening the rule of law – and in particular judicial independence – has been on the EU agenda for several years and it is still a high priority. The situation in Poland and Hungary has confirmed that the measures provided in the Treaties are not sufficient to effectively counteract certain risks or infringements of the rule of law that may occur in the Member States. On May 2018, the Commission presented the Proposal for a Regulation on the protection of the Union’s budget in cases of generalised deficiencies as regards the rule of law in the Member States. In general, the proposed Regulation allows activation of a system to block access to EU funds in order to protect the Union’s financial interests from the risk of financial loss in the event of “generalised deficiencies” as regards the rule of law are detected.

This paper will discuss the justification of ... Read more

Cassella_sw.jpg Stefan D. Cassella

Obtaining Records from a Foreign Bank
Note on the Decision of the Federal Court, Washington, DC, of March 18, 2019

16 August 2019 // english

A federal court in the United States granted a motion to compel two Chinese banks to comply with subpoenas served on their US branches, demanding records of transactions occurring in China. The same court also granted a motion to compel a third Chinese bank that has no US branches to comply with a similar subpoena for foreign records, holding that, because the bank maintains a correspondent account at a US bank, it is required by law to comply with such a demand for records. Those orders have now been affirmed by a federal appellate court in Washington, DC. This article explains the background of the case, the content of the court decision, and its importance.

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Bettina Häussermann / Dr. Christian Johnson

Mutual Recognition of Financial Penalties
Practical Experiences in Germany with the Application of Framework Decision 2005/214/JHA

14 August 2019 (updated 1 month ago) // english

This article seeks to demonstrate the practical challenges of enforcing financial penalties EU-wide. The instrument allowing such enforcement – Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties – has been transposed in almost all Member States but little appears to be known about its practical implementation. In Germany, quite remarkable figures have been observed both for incoming and outgoing requests.

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Desterbeck_sw..jpg Francis Desterbeck

Ne bis in idem and Tax Offences
How Belgium Adapted its Legislation to the Recent Case Law of the ECtHR and the CJEU

14 August 2019 (updated 1 month ago) // english

For decades, Belgian fiscal criminal law was governed by the fundamental principle that there had to be an absolute separation between the administrative tax investigations by tax authorities and criminal prosecutions carried out by the public prosecutor. In the light of the recent case law of the European Court of Human Rights and the Court of Justice of the European Union on the duality of administrative and criminal proceedings, this principle could no longer be upheld. A new law passed on 5 May 2019 brought Belgian legislation in line with this supranational case law. A consultation mechanism (introduced in 2012) between the tax administration and the prosecution service to give guidance to tax investigations, has been made more efficient.
In order to respect the “ne is in idem” principle, criminal courts must now take into account administrative sanctions of a criminal nature when sentencing tax crimes. The competences of the tax ... Read more

Csonka_online.jpg Peter Csonka

Editorial Guest Editorial eucrim 2/2019

14 August 2019 (updated 1 month ago) // english

Dear Readers, Developing criminal law and judicial cooperation in criminal matters has been a key component of Union policies for the last 20 years. The Union’s common area of freedom, security and justice (AFSJ) provides citizens and companies with both security and rights, in particular by ensuring an ever-increasing coordination between judicial authorities, the progressive mutual recognition of judgments and judicial decisions in criminal matters, and the necessary approximation of criminal laws. Soon, Union institutions must take stock of what has been achieved and what remains to be done. Our future priorities must follow the wake of our achievements but... Read more