On 19 December 2018, the Federal Government published a draft law on the protection of the financial interests of the European Union.
This draft law serves to implement the European Directive 2017/1371 of 5 July 2017, which may be regarded as the current basis for the criminal law protection of financial interests throughout the European Union. Only the United Kingdom and Denmark will not implement the Directive.
It was only in January 2019 that the study by Professor Richard Murphy of the University of London was published, according to which the national economies of the EU Member States may incur tax losses of up to 825 billion euros annually as a result of non-payment of taxes.
Much of these losses, the study says, stem from an existing extensive black economy and its consequences of non-payment of social security contributions, fraud and tax evasion.
The European Union had already declared war on these crimes years ago and now, with Directive 2017/1371, called on the Member States to adopt uniform rules on criminal offences designed to ensure the protection of the EU’s financial interests and to harmonise the main features of sanctions against natural and legal persons as well as procedural provisions.
The draft law now published by the German Federal Government confirms that the offences to be punished under the Directive are already covered to a large extent by the more general offences of the applicable German law, in particular the Criminal Code and the Tax Code. The criminal law protection covers not only conduct that is punishable in view of the financial interests of the European Union, but also offences that have exclusively national dimensions.
To the extent that the Directive also provides for sanctions, the content of the draft law requires the creation of new criminal offences „to prevent the improper use of services provided by the European Union“ and „to illegally reduce revenues of the European Union“ as well as „to bribery and corruption relating to the financial interests of the European Union“. The penalty range regularly includes a fine or imprisonment for up to five years.
The draft law has already been criticized by various bodies, as some critics do not believe that it contains the full range of problems arising from the implementation of the directive and thus leaves a gap in the criminal liability.
It is also surprising that the obligation to implement Directive 2017/1371 of the European Union of 5 July 2017 has obviously not contributed to rethinking sanctions against legal persons and closing gaps by creating its own corporate criminal law. The proposal for corporate criminal law has been the subject of intense debate in Germany for some time now.
In December 2017, for example, the Research Group on Criminal Law in Associations presented a „Cologne draft“ of an Act on Sanctions in Associations, which could also correspond to the goal of the coalition agreement of the current government to create a regulation on the criminal liability of companies and other associations.
The draft of the EU Financial Protection Strengthening Act briefly states with regard to the sanctioning of legal persons that there is no need for further implementation with regard to Directive 2017/1371, since fines can already be imposed on legal persons in the event of infringements of applicable law pursuant to Section 30 of the Administrative Offences Act.
It remains to be seen to what extent this draft law will be improved in the legislative process and what development the goal set in the coalition agreement of creating a criminal law framework for corporate responsibility will take in other ways.