17 December 2019 (updated 1 month ago)
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Obtaining Records from a Foreign Bank
Note on the Decision of the Federal Court, Washington, DC, of March 18, 2019
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.Read more
Ne bis in idem and Tax Offences
How Belgium Adapted its Legislation to the Recent Case Law of the ECtHR and the CJEU
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
Mutual Recognition of Financial Penalties
Practical Experiences in Germany with the Application of Framework Decision 2005/214/JHA
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.Read more
The use of minimum maximum penalties in order to harmonise criminal sanctions under Art. 83 TFEU has proven little effective so far. A project by the European Criminal Policy Initiative (ECPI), which was concluded recently, demonstrates that a reasonable harmonisation of sanctions must be preferably based on a system of relative comparability. Such a system would allow for an internal consistency of each national model, while simultaneously granting the European Union the possibility to classify the harmonised offences into a predetermined number of categories and by this means create a systematic and hierarchic rapport between the offences harmonised under EU law. This “category model” is ready for further development, and could theoretically even be a first step towards a system of supranational penalties.Read more
This article introduces the EU Commission’s Anti-Fraud Strategy (CAFS) adopted in April 2019 and explains its background, main features and objectives. The Commission introduced the new CAFS in order to meet the new challenges brought forward by a changing institutional and legislative anti-fraud environment and to adhere to relevant recommendations urging for a more robust anti-fraud system. The article discusses the CAFS’s main challenges and concludes that the new Strategy is designed to pave the way for the creation of a more effective anti-fraud policy for the protection of the EU’s financial interests. However, a strong commitment and continuous effort by the relevant stakeholders is necessary for an effective implementation.Read more
Fighting Terrorism through the European Public Prosecutor’s Office (EPPO)?
What future for the EPPO in the EU’s Criminal Policy?
The EPPO was established by Regulation 2017/1939, which entered into force on 20 November 2017, under enhanced cooperation to fight crimes affecting the Union budget. The Office is currently in the set-up phase with the aim of becoming operational at the end of 2020. On 12 September 2018, the Commission published a Communication on the extension of the EPPO’s competences to cross-border terrorist crimes and invited the European Council to take this initiative forward at the informal summit in Sibiu on 9 May 2019. As a single, decentralised European prosecution office, the EPPO could become an effective tool in investigating, prosecuting and bringing to judgement terrorist crimes and add a European dimension to the current efforts. Compared to the present horizontal, multinational approach, the EPPO would create a vertical, European relationship amongst the Member States and Union actors. This could be a decisive qualitative improvement, which would help overcoming the … Read more