Changes in the customs and tax framework - European Public Prosecutor's Office, customs litigation and its criminal aspects - 4 March 2022 - ADVENIAT

On Friday 4 March 2022, Maitre Gaspard de BELLESCIZE spoke at the conference "Regards sur les transports en 2022: Permanence et évolutions", organised by Lyon 2 and the Master 2 "Droit des transports et de la logistique". 

In particular, he developed the issues related to the European Public Prosecutor's Office, customs litigation and its penal particularities, and ended with the current situation concerning the draft "Sanctions Directive".

1. The European Public Prosecutor's Office has been operational since the European Commission's implementing decision (EU) 2021/856 of 25 May 2021. As of 1 June 2021, the European Public Prosecutor's Office officially takes up its functions, for :

"Investigate, prosecute and bring to trial the perpetrators of criminal offences against the financial interests of the Union (preliminary investigation or flagrante delicto/investigation) 

These include:

• Fraud against the EU's financial interests ;
• Corruption ;
• Money laundering ;
• Cross-border VAT fraud. 

At the central level, the European Public Prosecutor's Office is a single, supranational body, 'independent' of the European Union. Under the leadership of Laura Codruţa Kövesi, the body sets the strategic direction for criminal investigations and prosecutions. 

At the French level, David Touvet, Emmanuel Chirat, Mona Popescu and Cécile Soriano have been appointed as Deputy European Public Prosecutors for five years. 

Few cases opened in France, including one followed by the firm. News to follow!

2. With regard to customs litigation and its penal particularities, this conference enabled us to see how a customs inspection takes place, and to address the liability of the manager: 

• Start of the check 
• Drafting of minutes 
• Notice of survey results 
• Comments from the auditee 
• Summons to the drafting of the minutes of notification ; 
• Notification report (criminal risk for the manager and the company, as well as, if applicable, transaction with the customs). 

The presumption of guilt specific to customs law was also discussed, as were contemporary attempts to align customs law with criminal law: the right to error, Article 414-2, which finally mentions intent.

"Any act of smuggling or undeclared import or export is punishable by five years' imprisonment and a fine of between one and two times the value of the object of fraud, when committed intentionally and when it relates to goods not mentioned in Article 414.

3. Finally, the draft "Sanction Directive" 2013/0432/COD, promising fundamental advances for customs matters, withdrawn by the European Commission on 9 September 2020, was discussed. 

ADVENIAT is closely following this project, whose return is announced. News to follow !