Proposition 55K0706

Projet de loi modifiant la loi générale sur les douanes et accises du 18 juillet 1977 et le Code de la taxe sur la valeur ajoutée transposant la directive (UE) 2017/1371.

General information ¶

Submitted by

Chamber of representatives (2019-10-27 - 2020-03-17)

Submission date

Nov. 12, 2019

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

EC Directive European Union customs customs duties fraud criminal law

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP DéFI Open Vld MR PVDA | PTB

Voted to reject

VB

Abstained from voting

N-VA LDD

Contact form ¶

Do you have a question or request regarding this proposition? Select the most appropriate option for your request and I will get back to you shortly.

Discussion ¶

Nov. 28, 2019 | Plenary session (Chamber of representatives)

Full source

Mr Van der Donckt, rapporteur, refers to his written report. I will immediately give you the word in the general discussion, Mr. Van der Donckt.

Mr. Speaker, first of all, on behalf of our group, I would like to emphasize that we recognize the importance of the present bill in the context of anti-fraud. With this bill, we get a weapon in the fight against the crimes of VAT carousels.

In the committee we have said that the present bill still contains some shortcomings. We have also submitted an amendment to Article 12 in the committee. I will not go further on this, as this is already well outlined in the report.

In the preparation of this meeting, however, we have discovered another mistake in the bill, or let me express myself cautiously and call it an imperfection. In fact, a number of additional provisions included in the VAT Act are not linked to the first book of the Criminal Code. However, this is very important, because there are now penalty provisions included in a special law that are actually somewhat cracking and with which we will be able to start little in practice. More specifically, I am referring to Articles 12 and 13 of the draft law, which add an article 73novies and an article 73decies to the Code of Value Added Tax.

This discussion is legal and technical, but not without importance. Article 73quinquies of the Code of Value Added Tax states very explicitly that all the provisions of the first book of the Criminal Code, including Article 95, apply to the offences referred to in Articles 73, 73bis and 73quater. Thus, in Article 73quinquies, all penal provisions contained in this law are linked to the first book of the Criminal Code, but Article 73novies and Article 73decies are not included.

What is the implication of it? Article 73novies relates to the attempt to commit a particular infringement. This is punishable by a sentence of eight days to three years and a fine of 26 euros to 50,000 euros or one of those penalties alone. Article 73decies stipulates that a much heavier penalty is imposed when a breach set out in Article 73 is committed by a criminal organization within the meaning of Article 324bis of the Criminal Code. The penalty is then a prison sentence from one year to five years and a fine from 5,000 euros to 500,000 euros.

If there is a fine of 26 euros in a law, then you may find that amount ridiculous, but it must, of course, be increased with the fees. Currently, the estimates are eight. That is, 26 euros twice 8 is the effective fine. This is very important. Keep that in mind when I think further.

We have determined that the two articles 73novies and 73decies of the current bill do not fall under the first book of the Criminal Code. This means, therefore, de facto that a judge, when he must make a judgment on such a crime, can impose a maximum fine of 5,000 euros to 500,000 euros, when it occurs in a criminal organization, without applying the opdeciems. Colleagues, are we convinced that tax crimes, especially when they are committed in a criminal organization and are cross-border, should be tackled more severely? That is precisely the spirit of the European Directive which we are now transposing into our legislation.

If we do not incorporate Articles 73novies and 73decies into our Criminal Code, then we will de facto violate the spirit of the law and punish people lighter than intended. That can ⁇ not be the intention. Therefore, we have submitted a very simple amendment incorporating Articles 73novies and 73decies into Article 73, paragraph 3, with a paragraph subdivision, so that there is no problem at that point.

It is actually very simple. If you do not approve the amendment, those against whom we advocate – everyone agrees that they should be punished harder – and who commit acts within the framework of a criminal organization will be punished lighter than originally intended.

The N-VA is sometimes accused of being too mild for the perpetrators of tax fraud. For the second time now, after we have also in the committee, through an amendment, ensured that the incitement to such a crime is punished more severely, I give you the possibility to correct one and another.

If you do not approve the amendment, we have a problem with the application of Article 73novies and Article 73decies. In the long run, we will then have to develop a repair law, which is not really the intention. We are the legislator and we are therefore supposed to provide quality work.

Mr. Speaker, you know that we would rather consider the transposition of such European directives in a broader European framework. A number of parties dance around the hot breeze, falling into details.

However, the Directive transposed here, the so-called PIF Directive, will be very important for the European Public Prosecutor’s jurisprudence.

I have already noted in the committee that in some countries there is undoubted fraud with European money, which is unacceptable.

What is the solution for the good Europeans who constantly want more and more European Union? This is the creation of another European institution. The Flemish Interest is against the creation of another such European institution. We support European cooperation between national prosecutors in the field of fraud.

Only 22 European Member States participate in the European Public Prosecutor’s Office. A number of key countries do not do so because they believe that justice is part of the sovereignty of the Member States and the new rules are contrary to the principle of subsidiarity.

Of course they are right. Because fraud with European money is too common and is not properly addressed in some Member States, should we therefore create a new European institution? We also say that with this new institution we will give out responsibility. For example, the Belgian prosecutor’s investigation powers will now have to be shared with the European. In this context, the European Public Prosecutor’s Office will be able to apply a type of priority right. As a result, Belgium loses democratic control and we cannot agree with it.

We have not approved this directive in the European Parliament and we will not consistently approve its transposition here in the Federal Parliament. We believe that fraud should be tackled strictly and systematically by cooperation, but not by more Europe, not by additional institutions, and ⁇ not by increasing powers from Member States.

Mr. Speaker, I would like to talk about the N-VA amendment in this regard. This amendment was distributed in the session. Anyone who has listened to the explanation knows that it is a rather technical matter, quite complicated. We would like to have more time to study that and to see where the eventual heels and eyes are, and whether this is correctly solved or not. However, we do not have that time.

The amendment is also quite difficult to resolve on paper. That is not Mr. Van der Donckt’s fault, this is just a complicated matter. The amendment is also written only in Dutch. For Dutch speakers it is already very difficult to unravel, so I can imagine that for French speakers it is even more difficult. In fact, we would rather go back to the committee to discuss it properly, but I have understood that there is no enthusiasm for it. Our group will therefore abstain from this amendment.

Can you give your light on this?

We have adopted the Directive, directly, without any amendment. The directive, by the way, speaks only of prison sentences.

The State Council did not comment on this either.

I would propose to simply transpose this, but it is of course up to Parliament to look at how it deals with amendments.

I also have a more technical explanation if necessary. The fees are regulated by the law of 5 March 1952. These are the increases on the criminal penalties. These are not only applicable to the fines set out in the Criminal Code, but also to the criminal fines set out in the special laws.

The fines laid down in Articles 73novies and 73decies are indeed criminal fines to which these amounts would in any case apply.

Technically speaking, we do not consider it necessary to adopt that amendment. We have made a direct transposition of directives. In principle, there is no need for anything extra.

Mr. Speaker, this is indeed a technical discussion, but in essence it consists that we should apply book 1 of the Criminal Code to it. This is not only true for the multiplication with the opdeciems, but also to be able to adequately punish cases of repetition and to be able to assume mitigating circumstances.

The amendment has a technical significance. I would like to ask you to support this amendment. Otherwise, we are dealing with Kaduke legislation.

This is an improvement in the fight against fraud against the European Union’s own income. We all agreed on this. That must happen.

The amendment that the colleague of N-VA now submits is the continuation of an amendment that was voted on his initiative in the committee.

That amendment was already a two-sided sword, while we had received the assurance of the Minister that it was a correct transposition of the spirit of the directive. On the one hand, it is a burden in relation to the primary liability. On the other hand, there is a mitigation, by inciting or provoking what should be punished in the spirit of the directive, it is no longer punishable if no execution is given by a third party.

We have already held that discussion. This is continued in the new amendment. But, as colleague D'Haese said: (...) It is a two-sized sword and we will also have to look at the softening circumstances technically.

I have understood from the Minister and the Council of State that the Directive has been transposed correctly. I would therefore not start with the key at the end, while we do not know exactly how to encrypt it.

I would like to close the debate. We will not repeat the debate in the committee.

Colleagues, you are wrong and you will see the consequences of it. I would warn you. We have investigated this very thoroughly. Confrater D'Haese has already cited it; when one commits the acts as stipulated in Article 73, paragraph 3, in a criminal organization, for the third or fourth time, one always receives the same punishment. Then there is no warming. Remember that well. It will be included in the report. You are responsible for this. You actually want to encourage the recidive. That is one point.

A second point is that when you refer to the fact that the State Council had no comments, you are mistaken. However, there was a comment from the State Council, namely that the attempt was not included in the original bill. It was then included under article 73novies, but it was forgotten to apply to that article and also to article 73decies the first book of the Criminal Code.

My amendment is intended solely to correct that. Not more, not less. But well, if you disagree with that, you agree that the recidive should not be punished more severely in this law. Please note that we do not take tax fraud seriously. I think that by not adopting this amendment you are making that mistake.

I think we have all heard. We are still in the general discussion, but I think I can now consider it closed.