#69: EPPO goes shopping?

Political tensions within the EU are the order of the day. It seems that discussions about own sovereignty versus EU laws are here to stay. On the other hand the EU is working hard trying to harmonize laws and procedures. Fact is however that the EU still has a long way to go when it comes to unification on the various terrains, including criminal law. What is the effect of this for the young and blossoming European Public Prosecutor’s Office (EPPO)? Fact is that this organization has a very decentralized operation and every country has (slightly) different laws and procedures . Will this enhance the risk of EPPO going shopping in different EU countries?

Young and blossoming

The press publications about the first ongoing investigations of EPPO are a fact. On 20 October EPPO reported about 10 arrests in Germany, Italy and Bulgaria regarding suspicion of a criminal organization and evading taxes. The operation was led by a European Delegated Prosecutor (EDP) in Germany. On 1 October EPPO published about conducted searches in Austria regarding custom fraud, also led by a German EDP. And on 4 August EPPO reported about searches that were conducted in Germany, the Netherlands, Slovakia, Bulgaria and Hungary for a investigation into cross-border VAT fraud. It seems that the first investigations are focused on VAT and Customs fraud and have a German leadership. The material competence of EPPO with regard to VAT and custom fraud seems pretty straight forward. But are there any risks of EPPO going forum hopping given the material competence and the implementation within the national laws, and if so, what are they?

Material competence harmonized?

As explained in Lawlunch #66 the material competence of EPPO covers three different aspects. First,  EPPO can investigate and prosecute the so-called PIF offences; offences that are regulated in the PIF directive EU 2017/1317. VAT fraud is one of the crimes as described in the PIF directive. Second, the Regulation focuses on participation in a criminal organization, as long as the organization is focusing on committing PIF offences. Last, the Regulation covers criminal offences that are inextricably linked to crimes affecting the financial interests of the EU. One of the questions is of course why are the PIF crimes described in a Directive and not a Regulation. As a directive gives member states more freedom in the way these crimes are implemented. This makes it possible that the meaning of a PIF crime is slightly different in different countries. Legal certainty is at stake here.

This goes even more so for the interpretation of the second pillar of the material competence of EPPO, the so-called criminal organization with a focus on PIF offences. What does ‘focus’ mean? Does it need to be the prime focus of the organization? And what is the level of intent needed in for instance The Netherlands versus Germany? The same goes for the last category of crimes that falls within the material competence of EPPO regarding criminal offences inextricably linked to PIF offences. What does this mean? For instance, everybody knows that The Netherlands has a broad possibility to prosecute money laundering. Will the Netherlands be an attractive country for EPPO to prosecute inextricably linked crimes such as money laundering?

Or does EPPO prefer to prosecute a case in a country were, for example, the protection of the rights of a suspect are much lower. A comparative analysis of criminal procedural law is available to compare notes.

Forum shopping

This is all enhanced by the fact that EPPO has a choice of forum in cross-border cases. While in principle a case must be handled by an EDP in the country where the focus of the criminal activity is. However, until a decision to prosecute has been taken the central body of EPPO may reallocate the case in the general interest of justice. The risk of forum shopping might be a given. As long as harmonization within the EU is far from sight, the right to legal certainty of an EPPO suspect is just as far away.

Do you have any questions about the above or would you like to exchange views with us? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.


#18: What is the profit of money laundering?

 

In Lawlunch #09 we gave a brief overview of the relevant jurisprudence regarding the crime of money laundering. Furthermore we stipulated that money laundering is a beloved ‘catch all’ charge of the Dutch Public prosecution. It is often used as a safety net to get an easy conviction. Since 1 January 2017 of this year new legislation on ‘simple money laundering’ has come to force and created even more opportunities for the prosecution. Another reason for the public prosecution to charge someone with money laundering is that they believe that it is an easy way to recover illicit assets. Recent jurisprudence however shows that the prosecution service has to step up it’s game in order to achieve that goal which might not be as easy as the prosecution would like it to be.  READ MORE

#09: Money laundering struggles

If the public prosecutor does not know for what crime he has to prosecute, he can always rely on money laundering. At least, this seems to be the latest strategy. The offence money laundering is often used by the authorities as a ‘safety net’ to come to an easy conviction. In the Netherlands the legal framework for money laundering is broad. Although the Supreme Court has set some boundaries the Public authorities wish to have a catch-all clause. However, judges keep on setting boundaries. We will give a brief overview of the (money) laundering jurisprudence in The Netherlands and the recent developments.READ MORE