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The Protection of the Financial Interests of the European Union – the Past, the Present and the Future

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The Protection of the Financial Interests of the European Union – the Past, the Present and the Future MultiScience - XXXI. microCAD International Multidisciplinary Scientific Conference University of Miskolc, Hungary, 20-21 April 2017 ISBN 978-963-358-132-2 THE PROTECTION OF THE FINANCIAL INTERESTS OF THE EUROPEAN UNION – THE PAST, THE PRESENT AND THE FUTURE dr. Bence Udvarhelyi scientific researcher University of Miskolc, Faculty of Law, Institute of Criminal Sciences, Department of Criminal Law and Criminology I. INTRODUCTION It is a primary interest of the European Union to combat against crimes affecting its financial interests. According to some estimation, the overall damage caused by these criminal offences can reach 10-20% of the EU’s budget. [1] Apart from the substantial damage to the budget, on both the revenue and expenditure side, EU- fraud also has indirect effects. The differences in the assessment of EU-fraud by the national authorities can cause illicit competition among the economic operators in the Member States, because perpetrators choose for the commitment of the criminal offences the Member States where the penalty the most lenient is. Furthermore, in a long term, crimes against the financial interests of the European Union can also affect the credibility, confidence and political acceptance of the EU. Therefore, these offences may seriously slow down the process of European integration. [2] The European Union also realized the risks of these crimes and tried to create a coherent and effective framework to combat criminal offences against its financial interests. In this paper we intend to analyse the most important steps of this process. II. THE PAST – THE PFI-CONVENTION AND PFI-REGULATION Although crimes against the financial interests of the Union have extremely serious consequences, the EU has not adopted general rules to fights against these offences for a long time. Before the 1990’s, the protection of the EU budget was intended to be secured by sectorial directives. [3] However the lack of unified regulation caused serious problems, which led to the adaption of two legal instruments in 1995: a Convention [4] and a Regulation [5] on the protection of the European Communities financial interests (hereinafter: PFI-Convention and PFI-Regulation). As it can be seen the protection of the financial interests of the EU is based on two different pillars: while the PFI-Convention contains criminal measures against EU- fraud, the PFI-Regulation regulates the administrative means and sanctions. II.1. The PFI-Convention The main objective of the PFI-Convention is to ensure effective, proportionate and dissuasive protection of the Union's financial interests. In order to achieve this aim, SUPPORTED BY THE ÚNKP-13-6. NEW NATIONAL EXCELLENCE PROGRAM OF THE MINISTRY OF HUMAN CAPACITIES DOI: 10.26649/musci.2017.114 the Convention creates a common definition of EU-fraud. In connection with the definition, the Convention distinguishes between fraudulent acts relating to the expenditure and to the revenue of the Union. In respect of expenditure, EU-fraud can be any intentional act or omission relating to the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the misappropriation or wrongful retention of funds from the general budget of the European Communities or budgets managed by, or on behalf of, the European Communities; non-disclosure of information in violation of a specific obligation, with the same effect; or the misapplication of such funds for purposes other than those for which they were originally granted. In respect of revenues, EU-fraud can be any intentional act or omission relating to the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the illegal diminution of the resources of the general budget of the European Communities or budgets managed by, or on behalf of, the European Communities; non-disclosure of information in violation of a specific obligation, with the same effect; or misapplication of a legally obtained benefit, with the same effect. Furthermore, the Convention also criminalizes the intentional preparation or supply of false, incorrect or incomplete statements or documents having the aforementioned effects. [6] According to the Convention EU-fraud can only be punishable if it was committed intentionally. However, the Convention allows the Member States to infer the intentional nature of an act or omission from objective, factual circumstances. [7] The Member States are required to take all necessary and appropriate measures to criminalize EU-fraud in their national criminal law. [8] The penalty for EU-fraud differs according to its amount. In cases of minor fraud involving a total amount of less than EUR 4.000 without any particularly serious circumstances, Member States may provide for non-criminal penalties (e.g. administrative sanctions). If the amount of fraud exceeds EUR 4.000 Member States are obliged to set out effective, proportionate and dissuasive criminal penalties. And in cases of serious fraud, which involve a minimum amount set in each Member State, but at least EUR 50.000, the Member States have to punish EU-fraud by deprivation of liberty. [9] The Convention regulates the criminal liability of heads of businesses or persons having power to take decisions or exercise control within a business, who can be held liable in accordance with the principles defined by its national law if EU-fraud was committed by a person under their authority acting on behalf of the business. [10] The Convention also contains rules on jurisdiction, extradition and prosecution, cooperation between Member States and the ne bis in idem principle. [11] The European legislator also realized that not only EU-fraud, but other crimes could also harm the financial interests of the EU. Therefore, three Additional Protocols were adopted in 1996 and 1997, which deals with criminalization of active and passive corruption and money laundering and the liability of legal persons. [12] II.2. The PFI-Regulation The main objective of the PFI-Regulation is to adopt general rules relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to Community law. [13] Because the Regulation focuses on the administrative means of the protection of the financial interests of the EU it does not mention the criminal law notion of EU-fraud. Instead, the Regulation uses the definition of irregularity, which means an infringement of a provision of Community law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the Communities or budgets managed by them, either by reducing or losing revenue accruing from own resources collected directly on behalf of the Communities, or by an unjustified item of expenditure. [14] In connection with sanctions, the Regulation distinguishes between administrative measures and penalties. Between the two categories several differences can be observed. [15] The aim of the former is the withdrawal of the wrongly obtained advantage, whereas the latter has a clearly punitive nature. While the former can be applied automatically and irrespectively of the guilt of the perpetrator (strict liability), the applicability of the latter is not obligatory and can only be used if the irregularity was committed intentionally or by negligence. Furthermore, in connection with administrative penalties, the nulla poena sine lege principle also applies, because the Regulation stipulates that no administrative penalty shall be imposed unless a Community act prior to the irregularity has made provision for it. However, in the event of a subsequent amendment of the provisions which impose administrative penalties and are contained in Community rules, the less severe provisions shall apply retroactively. [16] Pursuant to the Regulation, administration measures are the withdrawal of the wrongly obtained advantage by an obligation to pay or repay the amounts due or wrongly received, or by the total or partial loss of the security provided; and the payment of interest determined on a flat-rate basis. Administrative penalties are the payment of an administrative fine; the payment of an amount greater than the amounts wrongly received or evaded; the total or partial removal of an advantage granted by Community rules; exclusion from, or withdrawal of the advantage for a period; temporary withdrawal of the approval or recognition necessary for participation in a Community aid scheme; the loss of a security or deposit provided for the purpose of complying with the conditions laid down by rules or the replenishment of the amount of a security wrongly released; or other penalties of a purely economic type. [17] III. THE PRESENT – DISCUSSION ON A DIRECTIVE ON THE PROTECTION OF THE FINANCIAL INTERESTS OF THE EU On the 1st December 2009 the Treaty of Lisbon entered into force which empowered the European Union with a broad competence in connection with the protection of its financial interests. According to Article 310(6) TFEU the Union and the Member States, in accordance with Article 325, shall counter fraud and any other illegal activities affecting the financial interests of the Union. Article 325(1) TFEU repeats the obligation of the Union and the Member States to counter fraud and any other illegal activities affecting the financial interests of the Union through measures, which are deterrent and which are able to afford effective protection in the Member States, and in all the Union's
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