The EPPO/OLAF Compendium of National Procedures: Denmark. Desktop codes on the procedural law of the Member States with annotations by national experts

λογος THE EPPO/OLAF VII Compendium of National Procedures Desktop Codes on the Procedural Law of the Member States with Annotations by National Experts Pierre Hauck and Jan-Martin Schneider Denmark The EPPO/OLAF Compendium of National Procedures Volume VII – Denmark The EPPO/OLAF Compendium of National Procedures Desktop Codes on the Procedural Law of the Member States with Annotations by National Experts, Volumes I (Austria) – XXVII (Sweden) Volume VII – Denmark Prof. Dr. Pierre Hauck LL.M. (Sussex) University of Giessen Dr. Jan-Martin Schneider University of Giessen Assisted by Nur Sena Karakocao˘ glu, Sophie Meyer and Alastair Alexander Laird Pierre Hauck Jan-Martin Schneider The EPPO/OLAF Compendium of National Procedures: Denmark Logos Verlag Berlin λογος Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available on the Internet at http://dnb.d-nb.de. This work is licensed under the Creative Commons Attribution 4.0 license CC BY (https://creativecommons.org/licenses/by/4.0/). Creative Commons license terms for re-use do not apply to any content (such as graphs, figures, photos, excerpts, etc.) not original to the Open Access publication and further permission may be required from the rights holder. The obligation to research and clear permission lies solely with the party re-using the material. Cover image by Tom Fisk, pexels.com Logos Verlag Berlin GmbH 2025 ISBN 978-3-8325-6013-3 Logos Verlag Berlin GmbH Georg-Knorr-Str. 4, Geb. 10, 12681 Berlin Tel.: +49 (0)30 / 42 85 10 90 Fax: +49 (0)30 / 42 85 10 92 https://www.logos-verlag.de The research underlying this publication was funded by the European Union’s HERCULE III programme (grant agreement No. 101015173). The content of this publication represents the views of the authors only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains. Dr Pierre Hauck LLM (Sussex) is Professor of Criminal Law at the Justus Liebig University of Giessen, Dr Jan-Martin Schneider, Nur Sena Karakocao˘ glu and Alastair Alexander Laird are research assistants there. This publication was supported by the Open Access Publication Fund of the Justus Liebig University of Giessen. The EPPO/OLAF Compendium of National Procedures Volumes I: Austria II: Belgium III: Bulgaria IV: Croatia V: Cyprus VI: Czech Republic VII: Denmark VIII: Estonia IX: Finland X: France XI: Germany XII: Greece XIII: Hungary XIV: Ireland XV: Italy XVI: Latvia XVII: Lithuania XVIII: Luxembourg XIX: Malta XX: Netherlands XXI: Poland XXII: Portugal XXIII: Romania XXIV: Slovakia XXV: Slovenia XXVI: Spain XXVII: Sweden Preface and Acknowledgments 14 Denmark In addition, Part E offers a gateway to national law by introducing provisions and offering translations of the most important ones for both OLAF investigators and defence counsel. Experts and authors: Compilation and research of the EPPO and OLAF Parts by Prof. Dr. Pierre Hauck LL.M. (Sussex), Dr. Jan-Martin Schneider (Dipl.-Jur. MR; R.A., University of Gießen)/Alastair A. Laird (R.A., University of Gießen)/Nur Sena Karakocaoğlu (Dipl.-Jur. FFM.; R.A., University of Gießen). Compilation and research of the OLAF-Part C arranged with the special help of Questionnaire experts/organisations (AFCOS Denmark, OAFCN). EPPO/OLAF Compendium 15 Table of Contents Preface and Acknowledgments ....................................................................................... 9 Table of Contents .......................................................................................................... 15 Abbreviations ................................................................................................................ 23 Tables & Figures ........................................................................................................... 27 Explanation of Symbols & Highlighting ...................................................................... 29 A. Material for Part D and Part E ............................................................................... 31 I. Case-Law Access in Denmark, OLAF-Related Case Law ................................ 31 1. Criminal Area ................................................................................................. 32 2. OLAF Regulation ........................................................................................... 35 II. Institutions ......................................................................................................... 38 1. The Prosecution in Denmark .......................................................................... 38 2. Organisation of the criminal justice system in Denmark ............................... 38 III. Contact to the Danish Prosecution Service ........................................................ 39 1. Request for Extradition .................................................................................. 39 2. General Contact to the Prosecution Services in a Particular Police District.. 39 IV. Sources of law .................................................................................................... 41 1. Main Danish Laws in the PIF Acquis Area ................................................... 41 2. Criminal Investigation related Laws .............................................................. 42 3. Relevant national Laws concerning OLAF investigations ............................ 42 B. General Introduction .............................................................................................. 45 I. The Special Position of Denmark ...................................................................... 45 II. The “Title V” of the TFEU: A terra incognita for Denmark? .......................... 46 III. Necessary Cooperation: But how? ..................................................................... 47 IV. New Changes and Position of the Danish Parliament (Folketinget) as of 2022: Extended cooperation or traditional international legal aid (International retshjælp) with the EPPO (Den Europæiske Anklagemyndighed)? ........................................... 47 1. Extended Cooperation as the new buzzword? ............................................... 48 2. The Introduction of Section 107 in the Danish Administration of Justice Act 2022 ....................................................................................................................... 48 a) Interpretation of Section 107a (Sentence 1) Danish Administration of Justice Act .......................................................................................................... 49 b) Interpretation of Section 107a (Sentence 2) Danish Administration of Justice Act .......................................................................................................... 49 c) The Special Role of the Attorney General ................................................. 49 3. Projects of the European Council and the EU for better communication of non-participating countries with the EPPO (2023–2025) ..................................... 54 C. Cooperation with Danish Justice Authorities ........................................................ 55 Table of Contents 16 Denmark I. Hypothetical considerations on the impact of the EPPO investigations under Art. 105 EPPO Regulation for Danish justice authorities ......................................... 55 II. Danish Participation in Eurojust ........................................................................ 55 III. Danish Cooperation with Europol ..................................................................... 56 1. Danish Agreement on Operational and Strategic Cooperation between Denmark and Europol ............................................................................................ 56 2. Danish Europol Act (Europol-loven Lov om Den Europæiske Politienhed (Europol)) .............................................................................................................. 56 IV. Cooperation in Administrative Tax matters (Administrativ bistandsloven) ...... 57 D. Danish Authorities Investigating PIF Acquis Offences ........................................ 59 I. Criminal investigations according to the Danish Criminal Procedural Rule (Retsplejoven) based on national law (measures) ..................................................... 61 1. Initiation of investigations into budget, customs and VAT fraud in Denmark and allocation of competences ............................................................................... 62 a) Initiation of Investigations by Danish Police and Prosecutors ................... 63 b) Other Relevant sources of the indications for a criminal PIF offence falling within the competence of Danish Authorities ................................................... 64 aa. Jurisdiction of Danish Prosecutors .......................................................... 64 (1) Danish Main Territory ........................................................................ 64 (2) Greenland and Faroe Islands ............................................................... 64 bb. Criminal Complaint and Notification Obligations of Danish Authorities to Report Fraud, Corruption and Embezzlement ........................................... 65 (1) Determination of the competence and verification of Crime Reports ............................................................................................................. 74 (2) The Union standards, Art. 24 para 6 et seq. EPPO Regulation .......... 74 cc. How to assess and verify the suspicion level according to the CPC for a criminal offence falling within the competence ............................................. 76 (1) Focusing the investigation on one person, a group of persons or legal person ......................................................................................................... 76 (a) Investigations against natural persons ............................................. 77 (b) Investigations against legal persons and their criminal liability (Strafansvar for juridiske personer) according to Sections 25, 26, 27 (5th chapter) of the Danish Criminal Code .................................................... 78 (2) Conditions of Criminality ................................................................... 80 (3) The PIF offences in Denmark ............................................................. 80 (a) Danish Criminal Code ..................................................................... 81 (aa) Advantage or Gift Promising...................................................... 81 (bb) Forgery Offences (Sections 171 et seq.) .................................... 81 (cc) Property Crimes (Embezzlement, Fraud – Sections 276 et seq.) ..................................................................................................... 83 Table of Contents EPPO/OLAF Compendium 17 (dd) VAT Act Offences ..................................................................... 94 (ee) Tax Control Act .......................................................................... 95 (ff) Penal Provisions of the Tobacco Tax Act ................................... 96 (gg) Further PIF Acquis Offences ...................................................... 97 dd. Examples and precedents ........................................................................ 98 (1) Fraud ................................................................................................... 99 (a) Revenue frauds ................................................................................ 99 (b) Expenditure frauds ........................................................................... 99 (2) Corruption offences ........................................................................... 100 (3) Money laundering with PIF crimes ................................................... 100 2. Waiver of the Charges, Prevention of Prosecution, Urgent Measures in the Investigation Stage and the Finalisation of the National Investigation ............... 101 a) Provisions with a precluding effect for the Prosecution Offices .............. 101 aa. Statute of limitations for offences and custodial consequences (imprisonment, etc.) ..................................................................................... 101 bb. Amnesty and Pardon ............................................................................. 105 cc. Opposing legal validity ......................................................................... 105 dd. Abatement of action (Dispense with prosecution, Waiver of Charges) ............................................................................................................... 105 b) Urgent measures of national authorities for securing an investigation and prosecution ....................................................................................................... 109 II. Involvement of Danish authorities in the fight against EU-fraud: Police, Tax and Customs investigating on behalf of the Danish prosecution offices ................ 110 1. The Danish Police and Prosecutor conducting investigative measures ....... 112 a) Instructions and assignment of investigative measures for national authorities ......................................................................................................... 117 b) Ensuring compliance with national law ................................................... 119 c) Urgent measures in accordance with national law necessary to ensure effective investigations .................................................................................... 121 2. Hindrances to effective EU fraud and corruption investigations in Danish national law.......................................................................................................... 125 a) National privilege and immunity provisions, para 1 ................................ 125 aa. Legal (professional) privilege ............................................................... 125 bb. Privilege against self-incrimination ...................................................... 127 b) Immunity provisions ................................................................................. 128 aa. Parliamentary privilege or immunity .................................................... 128 bb. National Legislation .............................................................................. 129 cc. Provisions on the lifting of immunities? ............................................... 129 c) Immunities and Privileges under union law, para 2 ................................. 130 Table of Contents 18 Denmark III. Collection of Danish Investigation Measures Equivalent to Art. 30 EPPO Measures .................................................................................................................. 131 1. The core investigation measures for financial fraud and corruption in Denmark (Equivalence to Article 30 EPPO Regulation) .................................... 131 a) Investigation measures ............................................................................. 132 aa. Search Measures ................................................................................... 132 (1) Search any premises or land ............................................................. 132 (2) Search any means of transport .......................................................... 133 (3) Search any private home ................................................................... 133 (4) Search any clothes and any other personal property ......................... 133 (5) Search any computer system ............................................................. 133 bb. Obtainment of the production of any relevant object or document either in its original form or in some other specified form .................................... 134 cc. Obtainment of the production of stored computer data, encrypted or decrypted ...................................................................................................... 136 dd. Obtainment of banking account data and traffic data ........................... 139 ee. Freezing instrumentalities or proceeds of crime, including assets ....... 143 ff. Interception of electronic communications to and from the suspect or accused person ............................................................................................. 145 gg. Tracking & Tracing an Object .............................................................. 146 hh. Other investigative Steps ...................................................................... 146 b) Specific restrictions in national law that apply with regard to certain categories of persons or professionals with an LLP obligation ....................... 149 2. Summary ...................................................................................................... 149 IV. On Cross-Border Investigations and the Enforcement of Assigned Measures in relation to Art. 31 and 32 EPPO Regulation ........................................................... 150 V. Securing the Investigation and Trial: From the Perspective of the Prosecution and from the Perspective of the Defence ................................................................ 152 1. Arrest and Pre-trial Detention in Denmark or how Article 33 EPPO Regulation would be interpreted in Denmark ..................................................... 152 a) General relation to national law: applicable Codes .................................. 153 b) Provisions for arrest and pre-trial detention ............................................. 153 aa. Provisions on Arrest .............................................................................. 153 bb. Rules on Pre-trial detention................................................................... 156 cc. Cross-border surrender and Extradition (to Denmark/ Udlevering til Danmark): Conditions for extradition from Denmark to Member States of the European Union except Finland and Sweden .............................................. 168 2. Filing an Indictment in case of fraud or corruption or other Actions by Danish Customs and Tax Administration in case of Tax and VAT offences .................. 172 Table of Contents EPPO/OLAF Compendium 19 3. Some provisions on Defence laws relating to national prosecutorial actions concerning PIF Crime offences ........................................................................... 175 a) General Rules on the Defence .................................................................. 175 b) Defence in the investigation phase ........................................................... 186 aa. At the police Station (Police Interviews etc.) ....................................... 186 bb. Access to national case file ................................................................... 188 (1) Danish Administration of Justice Act ............................................... 188 (2) Danish Administrative Act................................................................ 192 cc. Defence in case of arrest and pre-trial detention .................................. 193 c) Defence in Indictment phase and the trial phase ...................................... 193 d) What rules apply in the main hearing at first instance? ........................... 197 e) Rules on the Judgment: Conviction, Dismissal or Acquittal? .................. 197 f) What may happen in case of Acquittal? ................................................... 198 E. OLAF-Regulation ................................................................................................ 199 I. Provisions on External Investigations and On-the-Spot Checks in Denmark .......................................................................................................................... 199 1. Articles 1 and 2 Objectives, tasks and definitions ....................................... 201 2. Article 3 External investigations .................................................................. 204 a) On the spot-checks and inspections – Renouncing the applicable national law – Para 2, 4 .................................................................................................. 209 b) Assistance needed, competent authorities and access to information in the Member States, para 5 ..................................................................................... 209 c) Resistance by the economic operator vs. law enforcement and effective investigations, para 6 or the new model and the relevance of resistance or conformity of the Economic Operator ............................................................. 209 d) The basic principle of conformity to Regulations 2185/96 and 883/2013210 aa. Submission: Compliance with Union law ............................................. 210 bb. Resistance: Assistance in conformity with national procedural rules applicable ..................................................................................................... 210 e) Competent authorities ............................................................................... 210 f) National law and “checks and inspections” of OLAF .............................. 211 aa. Administrative procedure in general ..................................................... 212 bb. Special administrative powers and provisions in certain areas of revenue and expenditure ............................................................................................ 212 (1) Administrative provisions ................................................................. 212 (a) Administrative provisions in the area of customs duties and value added tax (VAT) = revenue .................................................................. 212 (aa) Principle of investigation .......................................................... 219 (bb) External audit (General Tax Code) .......................................... 219 Table of Contents 20 Denmark (cc) Tax and customs investigation (Customs Code/General Tax Code) ................................................................................................. 220 (dd) Fiscal supervision ..................................................................... 220 (b) Administrative provisions in the area of structural funds and internal policies (interne Politiken) = expenditure ............................................ 220 (aa) Structural funds ........................................................................ 220 (bb) Internal policies ........................................................................ 222 (c) Administrative provisions in the area of the common organisation of the markets = expenditure ..................................................................... 222 (2) Investigative powers ......................................................................... 225 (a) Investigative powers in the area of customs duties and VAT (General Tax Code) .............................................................................. 226 (b) Investigative powers around structural funds and internal policies ....................................................................................................... 231 (c) Investigative powers in the area of common market organisations ........................................................................................................ 236 (d) Investigative powers in the area of direct expenditure .................. 242 (e) Provisions in the area of external aid = expenditure ..................... 243 (3) Protection of information .................................................................. 244 (a) Administrative secrecy or professional secrecy (Administrative laws) ...................................................................................................... 244 (b) Official secrecy .............................................................................. 250 (4) Investigation reports (Customs Code, General Tax Code) ............... 251 (5) Support to the inspectors (Customs Code, General Tax Code) ........ 252 (6) Preservation of Evidence (Customs Code, General Tax Code) ........ 254 g) Single measures in Denmark .................................................................... 254 aa. The taking of statements from Economic Operators ............................ 254 bb. Inspections............................................................................................. 254 (1) Controls of the Regional and Social Fund ........................................ 254 (2) Controls and Inspections in the area of the European Regional Fund ........................................................................................................... 255 (3) Control and Audits in the area of Grants of the ERF and ESF ......... 255 (4) Controls in the General Tax Area ..................................................... 255 (5) Inspections in the VAT Area ............................................................ 258 (6) Controls in the Customs Area ........................................................... 258 cc. The seizure of digital forensic evidence including bank account information ................................................................................................... 258 dd. Acquisition of digital evidence and Digital forensic operations within inspections or on-the-spot checks ................................................................ 259 ee. Investigative missions in third countries ............................................... 259 Table of Contents EPPO/OLAF Compendium 21 h) Cooperation and mutual assistance agreements ....................................... 259 3. Article 4 Internal investigations ................................................................... 260 a) References to national law, para 8 ............................................................ 261 b) Competent authorities ............................................................................... 261 4. Article 5 Opening of investigations ............................................................. 262 a) Competent authorities ............................................................................... 262 b) National rules............................................................................................ 262 5. Article 7 Investigations procedure ............................................................... 266 a) References to national law ....................................................................... 267 b) References to national authorities ............................................................ 276 6. Article 8 Duty to inform the Office ............................................................. 277 II. Procedural Rules on Investigations of OLAF and the References to National Law .......................................................................................................................... 278 1. Article 9 Procedural guarantees ................................................................... 278 2. Article 10 Confidentiality and data protection ............................................. 279 3. Article 11 Investigation report ..................................................................... 281 4. Article 12 Exchange of information between the Office and the competent authorities ............................................................................................................ 285 a) Art. 12 para 1 OLAF Regulation (competent authorities & appropriate action in accordance with their national law) .................................................. 285 b) Art. 12 para 2 OLAF Regulation (judicial authorities of the Member State concerned) ........................................................................................................ 286 c) Art. 12 para 3 OLAF Regulation (Information to the Office by competent authorities of the Member State concerned) .................................................... 286 5. Article 12a Anti-fraud coordination services ............................................... 287 a) General remarks........................................................................................ 287 aa. Definition and History .......................................................................... 287 bb. Legislative developments ...................................................................... 289 cc. Visualisation of old (prior to 2020) vs. new (since 2020) cooperation and role of the AFCOS ....................................................................................... 290 b) A closer look at the relevant AFCOS in the present Member State ......... 291 6. Article 12e The Office’s support to the EPPO ............................................. 292 7. Article 13 Cooperation of the Office with Eurojust and Europol ................ 293 8. Article 17 Director-General ......................................................................... 294 Bibliography and Further Reading.............................................................................. 297 Further Research Suggestions ..................................................................................... 308 Important Websites ..................................................................................................... 308 Index............................................................................................................................ 309 EPPO/OLAF Compendium 23 Abbreviations ACAs Administrative Cooperation Agreements AFCOS Anti-fraud coordination service AFSJ Area of Freedom, Security and Justice AMIF Asylum, Migration and Integration Fund AML Anti Money Laundering BEK Bekendtgørelse (meaning statutory regulation or ministerial/executive order) BMVI Instrument for Financial Assistance in CC Criminal Code CDPC European Committee On Crime Problems CF Cohesion Fund COCOLAF Advisory Committee for the Coordination of Fraud Prevention CPC Criminal Procedure Code DAJ Act Danish Administration of Justice Act DKK Danish Krone EAFRD European agricultural fund for rural development EAGF European agricultural guarantee fund EAW European Arrest Warrant EC European Commission ECA European Court of Auditors ECHA European Chemicals Agency ECHR European Convention of Human Rights ECtHR European Court of Human Rights ECJ European Court of Justice (now CJEU) ECJN European Judicial Network against Cybercrime ECON European Parliament’s Committee on Economic and Monetary Affairs ECP European Chief Prosecutor EDF European Development Fund EDMS Electronic Document Management System EDO European Data Officer eDP ePrivacy Directive EDP European Delegated Prosecutor EEAS European External Action Service EEC European Economic Community EIO European Investigation Order Explanation of Symbols & Highlighting 30 Denmark All Eur-lex material used in this work is © European Union. Denmark Flag https://openclipart.org/download/263458/Denmark-Map-Flag-With-Stroke.svgis licensed under CC BYSA 4.0. To view a copy of this license, visit https://creativecommons.org/licenses/bysa/4.0?ref=openverse. Expert Icon 6. Flaticon Free License (With Attribution). ahref="https://www.flaticon.com/free-icons/student" title="student icons". Student icons created by Freepik – Flaticon</a>; Checkmarks/ticks on circles. Credit goes to Andrea S/librarian @openclipart.org. 2008.Money bag by security_man/librarian https://openclipart.org/detail/245511/money-bag. Arrest Icon by j4p4n/librarian https://openclipart.org/detail/280072/arrest-icon. Academic cap by pnx -/librarian. https://openclipart.org/detail/202668/academiccap. 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All Eur-lex material used in this work is © European Union. and/or Official Gazette 4.0 OpenGovernmentLicence. Only European Union legislation published in paper editions of the Official Journal of the European Union prior to 1 July 2013, and its electronic versions published after 1 July 2013 have legal value. Further information from the Official Gazette is used under Open Licence. Data from GeoNames and all other source is used on the basis of a CC BY 4.0 licence and Open Government Licence or academic work. National transposition measures communicated by the Member States concerning: Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law OJ L 198, 28/07/2017, p. 29–41 (B G, ES, CS, DA, DE, ET, EL, EN, FR, GA, HR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV). The Member States bear sole responsibility for all information on this site provided by them on the transposition of EU law into national law. This does not, however, prejudice the results of the verification by the Commission of the completeness and correctness of the transposition of EU law into national law as formally notified to it by the Member States. The collection National transposition measures is updated weekly. Errata: In Volumes III, V, X, XXII, the word ‘Legal Trainee’ was missing prior to Attorney for Austria. This volume is intended to provide a general overview and discussion of the issues dealt with in relation to EPPO/OLAF. It is not intended as a substitute for legal advice in a specific situation and should not be used as such. The laws cited are presented as of 31/12/2023. They may have changed in the meantime. Some commonly used PIF laws and investigative measures have been cross-checked again for publication in January 2025. EPPO/OLAF Compendium 31 A. Material for Part D and Part E I. Case-Law Access in Denmark, OLAF-Related Case Law Any European Delegated Prosecutor (EDP) and legal practitioners in the EU seeking access to Danish court decisions for defence decisions involving OLAF and criminal charges related to EU fraud or offences under the PIF Directive can primarily use the Danish digital court judgments platform, known as Domsdatabasen. This is the official repository for selected judgments from the Danish court system, including district courts, high courts, and the Supreme Court. Although not all decisions are made publicly available, the database contains a wide range of anonymised rulings of general legal or societal interest. Judgments concerning financial crime, fraud involving EU funds, or cooperation with OLAF may be included, particularly where the case has broader implications or establishes legal precedent. 2 Users can search the Domsdatabasen using a range of filters and keywords, such as “EUstøtte” (EU support), “OLAF”, “svig” (fraud), “økonomisk kriminalitet” (economic crime), or specific references to subsidy fraud or structural funds. Legal professionals may also search by relevant provisions of the Danish Penal Code, including fraud (Section 279), forgery (Section 171), and bookkeeping offences, or by identifying the prosecuting authority, which in most EU-related financial crime cases is the Special Crime Unit (Statsadvokaten for Særlig Kriminalitet, also known as SØIK or SØK). In cases where OLAF has been involved, the court may explicitly refer to OLAF reports, findings, or documentation submitted during the investigation or trial. Such references are typically included in the factual background or evidentiary reasoning of the judgment. Where a relevant decision is not available through the Domsdatabasen, lawyers and EDPs may request access directly from the court registry where the case was heard. These requests are assessed under Danish procedural law and data protection rules and often require a demonstration of legal interest or standing. In the context of cross-border cooperation or coordinated EU investigations, EDPs may also liaise with the Danish national European Delegated Prosecutor or the Special Crime Unit to facilitate lawful access to documents and case information. The Domsdatabasen website also includes a frequently asked questions section (“Spørgsmål og Svar”), which provides guidance on how to conduct searches, what types of cases are included in the database, the anonymisation standards applied, and the procedure for requesting unpublished judgments. This framework ensures that access to 2 See https://www.thedanishparliament.dk/en/democracy/the-courts-of-justice and https://www.cbs.dk/en/library/databases/domsdatabasen-rulings-database; https://domsdatabasen.dk/. Accessed 31 December 2024. 1 2 3 4 Material for Part D and Part E 32 Denmark Danish case law involving OLAF and PIF-related offences is both transparent and structured, while also balancing privacy and judicial independence. 1. Criminal Area Table 1: Danish Courts and ECtHR Jurisprudence ECtHR Content/Relevance Decisions concerning pre-trial detention and extradition related questions: ECHR V. and A. v. Denmark [GC], no. 35553/12, 36678/12 and 36711/12, Judgment of 22 October 2018. The case involved three Danish nationals (S., V., and A.) who were detained by Danish police in Copenhagen during the 2009 Denmark-Sweden football match to prevent anticipated hooligan violence. They were detained under Section 5(3) of the Danish Police Act, which allows preventive detention to avert public disorder, but not within the context of a criminal investigation. Herewith it was clarified that Article 5 para 1(c) can encompass shortterm preventive detentions in exceptional public order situations. ECHR Vasileva v. Denmark, no. 52792/99, Judgment of 25 September 2003. Mrs. Sofiika Vasileva, a 67-year-old Bulgarian national, was arrested in Århus, Denmark on 11 August 1995 for refusing to disclose her identity after a dispute with a bus ticket inspector. She was detained by police from 9:30 p.m. until 11:00 a.m. the next day, a total of 13.5 hours, and later collapsed, requiring hospitalization. She was detained under Section 755 para 1 of the Danish Administration of Justice Act for breaching Section 750, which requires individuals to identify themselves to police upon request. The arrest was lawful in principle and aimed at fulfilling a legitimate obligation. However, the length of the detention (13.5 hours), especially with no attempt to identify her from 11:00 p.m. to 6:30 a.m., was disproportionate. Authorities failed to strike a fair 5 Material for Part D and Part E EPPO/OLAF Compendium 33 balance between enforcing the law and respecting individual liberty. A violation of Article 5 para 1 was found due to unjustified length of detention for a minor offence. Decisions concerning PIF offences Court in Lyngby, SS-181/2022-LYN, Judgment of 21 December 2022 ECLI:DK:LYN: 2022:SS0000002044. Charges for EU fraud in accordance with section 289 (a), paragraphs 1 and 2, cf. Regulation (EC) No 2004 of the European Parliament and of the Council of 4 November 2003 on the statute and financing of political parties and foundations at European level and forgery of documents in accordance with section 171(1) of the Criminal Code, see. 1. The defendants were involved in systematic financial fraud over several years. The fraud included manipulating company accounts, creating false invoices, and hiding debt or overstating assets to obtain loans or avoid taxes. The damage caused ran into millions of Danish kroner. They used shell companies and exploited legal structures to hide illegal activities. The court found both defendants guilty on most counts. It emphasized the systematic and deliberate nature of the fraud and the significant damage caused. The court also considered the length of the criminal conduct, the defendants’ roles, and their intent. Defendant 1 received a prison sentence. Defendant 2 also received a custodial sentence. In addition, the court-imposed bans on company management and financial compensation orders. The European Anti-Fraud Office (OLAF) played an important role in the investigation: “The investigation was initiated in collaboration with OLAF, which had identified irregularities in the use of Material for Part D and Part E 34 Denmark EU funds allocated to agricultural development projects in Denmark and other EU countries. OLAF passed on relevant findings and documents to the Danish Special Crime Unit (SØK), which continued the investigation nationally.” The court noted that: The fraud involved manipulation of applications and supporting documents for EU funding. The defendants overstated project progress, submitted false documentation, and channelled funds through front companies. OLAF’s investigative material was integrated into the evidence base used by SØK to build the Danish criminal case. Copenhagen City Court, SS27430/2018-KBH, Judgment of 18 August 2022, ECLI:DK:KBH:2022:SS0000001510. The case concerns the involvement of large-scale VAT and tax fraud and money laundering. Court of Glostrup, SS-2664/2022-GLO, Judgment of 2 February 2024, ECLI:DK:DK:GLO:2024:SS00000092. A 54-year-old English financier is punished with imprisonment for 6 years for fraud against SKAT by in the period 2012–2015 unjustified to have recovered and received reimbursement of dividend tax for a total of DKK 320 million. (Dividend tax case II). Charges for fraud of particularly serious nature in accordance with section 279 of the Penal Code, see. section 286, paragraph 2, by unlawfully having prompted unduly recovery of dividend tax. The case also contains the decision on pre-trial detention during any appeal, or until enforcement of the penalty can be initiated, see. 1, 2. paragraph, see. section 762, paragraph 1, no. 1, and paragraph 2, no. 1. Claim for expulsion, confiscation and disqualification of rights Source: The authors. Material for Part D and Part E EPPO/OLAF Compendium 35 Criminal cases of the Danish prosecutor and the prosecution offices can thus be primarily be obtained via this Database 3 . If necessary, it contains orders of the Supreme Court, the prosecutorial focus of the Danish prosecution offices, guidelines on prosecution, Guidelines, instructions and notes from the Attorney General, material from the Minister of Justice etc. It e.g. contains the Attorney General’s Announcements relating to International Cooperation of Denmark. 4 Danish courts must, if they have a material question of EU law within their process, ask the ECJ as the Union’s Court within a preliminary question for a preliminary ruling, see the Special Guideline of the Attorney General/Minister of Justice (Preliminary reference to the European Court of Justice RM 10/2008 – revised 25 November 2014 5 ). 2. OLAF Regulation Table 2: OLAF-related Case-law Relates to Art. Judgment, ECLI, etc. Content Deciding Court: ECJ Art. 1–4 ECJ, C-615/19 P, 25 February 2021, John Dalli v. European Commission, ECLI:EU:C:2021:133. Allegedly illegal conduct of the European Commission and the European Anti-Fraud Office (OLAF), Procedural rules governing the OLAF investigation, Opening of an investigation, Right to be heard Art. 3 (right to be heard, digital forensic evidence) ECJ, C-153/94, 14 May 1996, Faroe Seafood Co. Ltd, Føroya Fiskasøla L/F, ECLI:EU:C:1996:198. “Faroe Seafood, which was an English company, imported prawns into the United Kingdom with EUR 1 certificates issued by the authorities of the Faroe Islands. In 1991, an investigative commission (OLAF) visited the Faroe Islands and it was concluded that the rules surrounding 3 See https://vidensbasen.anklagemyndigheden.dk/. Accessed 31 December 2024. 4 See the Attorney General’s announcement. 5 See https://vidensbasen.anklagemyndigheden.dk/h/6dfa19d8-18cc-47d6-b4c4-3bd07bc15ec0/VB/894754faae4a-41ac-a9ad-f1d3471f24ea?showExact=true. Accessed 31 December 2024. 6 7 8 9 Material for Part D and Part E 36 Denmark the issuance of EUR 1 certificates by the Faroese authorities were not respected. OLAF found that the companies had processed shrimp originating in the Faroe Islands without physically keeping them separate from shrimp from countries outside the EU. Therefore, the EUR 1 certificates should be considered fully or partially cancelled.” Art. 4 Internal Investigations Judgment of the Court (First Chamber) of 10 June 2021, C-591/19 P, European Commission v. Fernando De Esteban Alonso, ECLI:EU:C:2021:468. Appeal, Civil service, Internal investigation by the European Antifraud Office (OLAF), Forwarding of information by OLAF to the national judicial authorities, Filing of a complaint by the European Commission, Concepts of an official who is “referred to by name” and “implicated”, Failure to inform the interested party, Commission’s right to file a complaint with the national judicial authorities before the conclusion of OLAF’s investigation, Action for damages. Art. 7 ECJ, C-650/19 P, 28 October 2021, Vialto Consulting Kft. v. European Commission, ECLI:EU:C:2021:879. Appeal, Investigation by the European Anti-Fraud Office (OLAF), On-the-spot checks, Regulation (Euratom, EC) No 2185/96, Article 7, Access to computer data, Digital forensic operation, Principle of legitimate expectations, Right to be heard, non-material damage First Instance: GC, Case T-617/17, 7 September 2017, Vialto Consulting v. Commission, ECLI:EU:T:2019:446. Article 7(1) of Regulation (EC) No 2185/96; Principle of sound administration; Legitimate expectations; Proportionality; Right to Material for Part D and Part E EPPO/OLAF Compendium 37 be heard; National public procurement; Devolved management; Decision of a national authority; Investigations by OLAF; Non-material damage; Sufficiently serious breach of a rule of law conferring rights on individuals. Art. 10 Judgment of the General Court (Eighth Chamber) of 26 May 2016, Case T-110/15, International Management Group v. European Commission. Digital reports (Court Reports – general). ECLI:EU:T:2016:322 Judgment of the Court of First Instance (Second Chamber) of 30 May 2006, Case T-198/03, Bank Austria Creditanstalt AG v. Commission of the European Communities. ECLI:EU:T:2006:136 Access to documents; Regulation (EC) No 1049/2001; Documents relating to an OLAF investigation; Access refused; Exception concerning the protection of the purpose of inspections, investigations, and audits; Obligation to carry out a specific and individual examination; Category of documents. Material for Part D and Part E EPPO/OLAF Compendium 38 II. Institutions 1. The Prosecution in Denmark Table 3: The regional Prosecution offices in Denmark 2. Organisation of the criminal justice system in Denmark Table 4: National authorities involved in PIF investigations Translated Term Original Term Danish Prosecution Authority Anklagemyndigheden State Prosecutor for Serious Economic and International Crime (“SEIC”) Statsadvokaten for Særlig Økonomisk og International Kriminalitet (SØIK) The Danish Financial Supervisory Authority Finanstilsynet Strandgade 29 1401 København K Housing and Planning Agency Boligog Planstyrelsen Danish Fisheries Agency Fiskeristyrelsen Customs and Tax administration/ Customs agency/ Skatteog Toldforvaltningen Toldstyrelsen6 6 See https://www.toldst.dk/. Accessed 31 December 2024. General Prosecution Service District Offices Material for Part D and Part E EPPO/OLAF Compendium 39 Tax Agency Skattestyrelsen7 Danish Agency for Agriculture, National Board of Agriculture Landbrugsstyrelsen Danish Business Authority Erhvervsstyrelsen Danish Ministries Development and Simplification Agency Udviklingsog Forenklingsstyrelsen8 III. Contact to the Danish Prosecution Service 1. Request for Extradition If an extradition of a citizen shall be requested from Denmark the following contact is listed by the Council of Europe: The Director of Public Prosecutions Frederiksholms Kanal 16 1220 København K Denmark Telephone: + 45 72 68 90 00 Fax: + 45 72 68 90 04 E-mail: [email protected] 9 2. General Contact to the Prosecution Services in a Particular Police District The following information can be important if an EDP in e.g. Germany, the Netherlands, Latvia or France needs to contact the Danish Prosecution for information. The Prosecution Service in the police districts Enquiries and requests addressed to the Prosecution Service in the police districts must be made directly to the offices and police districts concerned. Jutland North Jutland Police, tel.: +45 96 30 14 48, email: [email protected] East Jutland Police, tel.: +45 87 31 14 48, email: [email protected] Central and West Jutland Police, tel.: +45 96 14 14 48, email: mvjyl-[email protected] South East Jutland Police, tel.: +45 76 28 14 48, email: [email protected] South Jutland Police, tel.: +45 76 11 14 48, email: [email protected] 7 See https://www.sktst.dk/. Accessed 31 December 2024. 8 See https://www.ufst.dk/. Accessed 31 December 2024. 9 See https://rm.coe.int/16806b9363. Accessed 31 December 2024. 10 11 12 General Introduction 46 Denmark the EU’s prosecution authority. The greatest fear that they saw is that “power”, “executive power” would be transferred to the EU. This position resembles the position of Hungary and Karsai has analysed in a detailed manner, which reasons exist for this position. If taking a look at the details, it is de facto not much executive power, which is transferred to the EU because this money is declared European money in the moment the state owes this sum to the EU budget anyway. The opposition, the Danish Socialists did not understand the position of the People’s Party and voted against it in 2018. Denmark has seen alleged misuse of EU funds nearly ten years ago, when “it emerged that the Danish People’s Party had used money from the funds in violation of the rules. Among other things, EU funds were used in connection with a much-publicized sailing trip with the schooner Halmø to 16 Danish cities in connection with the municipal elections in 2013.” 15 But be it as it may, nevertheless, Denmark must also recognize the signs of the times and some voters may see the light when it comes to the enforcement of Europe-wide sanctions in the area of the customs union and the terrible war of the Russian Federation in Ukraine. Transnational crimes affect all EU citizens, including Danish voters and taxpayers. So they may be thinking about how a changed world situation may also change national directions in small steps and ways of thinking and who knows what may change in terms of participation in the future – especially if the Balkan states, Ukraine and Moldova want to join the Union and would be immediately willing to participate in the EPPO. Today, Ukraine already has a working arrangement with the EPPO compared to Denmark, and Denmark certainly does not want to move to a confrontational position like Hungary and Poland in this regard, too. Denmark will need a new political strategy for the 2020s and 2030s regarding it’s still not open-minded thinking in terms of fighting organised crime in the UE and worldwide. External work with the EPPO will be very important and de facto necessary, especially in criminal matters (customs fraud, VAT fraud), etc. 16 II. The “Title V” of the TFEU: A terra incognita for Denmark? The European Parliament outlines with regard to the AFSJ that “Denmark does not take part in the adoption by the Council of the measures pursuant to Title V of the TFEU (Protocol 22 – ‘opt-out’ – exempts Denmark from participating in the policy). It has nonetheless been implementing the Schengen acquis since 2001 on an intergovernmental basis. Concerning judicial cooperation in civil matters and the rules 15 Ibid. 16 Axelsson 2022. 4 5 General Introduction EPPO/OLAF Compendium 47 regulating which courts have jurisdiction in legal disputes of a civil or commercial nature between individuals residing in different Member States (‘Brussels I’ Regulation), on 19 October 2005 the Kingdom of Denmark and the EU concluded an agreement on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. According to Article 3(2) of the agreement, whenever amendments are adopted, Denmark must notify the Commission of its decision whether or not to implement the content of such amendments.” 17 . This position has not changed fundamentally in the youngest past. It remains to be seen whether the further opening of the Schengen Area, the big fraud carousels or the customs offences change the position of Danish voters and political parties. III. Necessary Cooperation: But how? Speaking of the possible cooperation, we should address Art. 104 and 105 of the EPPO Regulation and state that nevertheless Denmark is an important country in crossborder (fraud, customs and tax) investigations anyway. So what does cooperation based on Union law look like? What does it look like from a Danish point of view? Which national laws apply to cooperation and how does Denmark actually curb EU fraud with its own judicial bodies, e.g. when OLAF provides evidence for the opening of national criminal proceedings. Interestingly, Denmark participates in cooperation with OLAF (up to 1998 UCLAF) on the basis of the old PIF decisions from 1995 and also has its own AFCOS office, which coordinates cooperation in the area of administrative combating of EU fraud. In Part B the volume follows the impact of OLAF investigations in Denmark and how they are conducted. What kind of relevance do OLAF reports play in Danish criminal justice and is the Regulation really but to the forefront i.e. has the relevance it should have on national territory. In addition this Part C offers a gateway to national law by introducing provisions, providing a translation of the most important provisions (for OLAF investigators) and defence attorneys. IV. New Changes and Position of the Danish Parliament (Folketinget) as of 2022: Extended cooperation or traditional international legal aid (International retshjælp) with the EPPO (Den Europæiske Anklagemyndighed)? The Danish Parliament has thought about some changes of its position towards the EPPO in June 2022. In the past, as lawyers have pointed out rightly the only way of 17 See https://www.europarl.europa.eu/factsheets/en/sheet/150/an-area-of-freedom-security-and-justice-generalaspects. Accessed 31 December 2024. 6 7 8 9 10 11 General Introduction 48 Denmark cooperation between the EU Member State Denmark and the EPPO was the traditional legal aid and mutual recognition frameworks. 18 1. Extended Cooperation as the new buzzword? Under the government of 2022, Minister of Justice Nick Hækkerup followed a new doctrine and Denmark decided to present a new mechanism to the public, which goes beyond the traditional legal aid and mutual recognition systems – which were restricted to cooperation with states. The Danish Parliament was confronted with a de facto possibility that would establish an extended cooperation with the EPPO and Organisations alike. The process leaves the traditional thinking to remain neutral to the changes in the area of freedom, security and justice of the EU. It is not, lets clearly stress this again, an-optin to the EPPO mechanism but it comes close to a cooperation that is equal to a Working Arrangement, which other countries like e.g. Hungary or Ukraine concluded with the EPPO. 2. The Introduction of Section 107 in the Danish Administration of Justice Act 2022 The concrete steps for this extended cooperation, which must in reality prove that is not just a buzzword, is the introduction of section 107a in the Danish Administration of Justice Act, which was first proposed by L 182 Proposal for an Act amending the Penal Code, the Administration of Justice Act and various other laws in June 2022 (see L 182 Forslag til lov om ændring af straffeloven, retsplejeloven og forskellige andre love). The traveaux préparatoires for this Danish bill and the reasoning stated that: “The [Draft] tenthly contains a proposal that it be clarified by law that Danish authorities and courts can process requests for legal aid from and forward requests for legal aid to the European Public Prosecutor’s Office (EPPO) in accordance with general rules on states’ mutual legal aid in criminal cases.” 19 The tabled bill read like follows: Section 2 In the Administration of Justice Act, cf. Executive Order No. 1835 of 15 September 2021, as last amended by Section 1 of Act No. 697 of 24 May 2022, the following changes are made: 1. In Section 41 f, subsection 2, 2nd point, inserted after “Section 41 e,”: “para. 1, 2. pt., and”. 2. After section 107, the following is inserted in chapter 10: 18 Folker and Sejbak 2022: “Legally, this means that Danish authorities can only cooperate with the EPPO on the basis of general principles for cooperation in cross-border criminal cases (‘Legal Aid’).” 19 See https://www.ft.dk/samling/20211/lovforslag/L182/index.htm. Accessed 31 December 2024. 12 13 14 15 General Introduction EPPO/OLAF Compendium 49 “Section 107a Danish authorities and courts can process requests for legal aid from and forward requests for legal aid to the European Public Prosecutor’s Office (EPPO) in accordance with general rules on states’ mutual legal aid in criminal cases. The Minister of Justice can lay down detailed rules in this regard.” 20 Section 107a entered into force in 2022 and is already applicated by the EPPO and Danish authorities – at the time of writing since nearly 6 months. a) Interpretation of Section 107a (Sentence 1) Danish Administration of Justice Act Interpreting this new provision, one can first take a look at the first sentence: “Danish authorities and courts can process requests for legal aid from and forward requests for legal aid to the European Public Prosecutor’s Office (EPPO) in accordance with general rules on states’ mutual legal aid in criminal cases.” Speaking of legal aid, the provision relates to the legal aid between Danish authorities, like e.g. the Danish Financial Supervisory Authority, Customs and Tax administration/Customs and Tax Agency as well as the Anklagemyndighen b) Interpretation of Section 107a (Sentence 2) Danish Administration of Justice Act At the moment of writing no document of the Ministry of Justice has been published, which lays down detailed rules on how the Danish authorities can process requests for legal aid from and forward requests for legal aid to the European Public Prosecutor’s Office (EPPO). c) The Special Role of the Attorney General Even if the Attorney General is not mentioned by section 107a of the DAJ Act, he/she can issue special regulations and guidelines, which concern the area of international cooperation and must be followed by the prosecution offices, e.g. a document on International legal aid (Version 24 October 2022) has been published recently. These rules are 20 § 2 I retsplejeloven, jf. lovbekendtgørelse nr. 1835 af 15. september 2021, som ændret senest ved § 1 i lov nr. 697 af 24. maj 2022, foretages følgende ændringer: 1. I § 41 f, stk. 2, 2. pkt., indsættes efter “§ 41 e,”: “stk. 1, 2. pkt., og”. 2. Efter § 107 indsættes i kapitel 10: “§ 107 a. Danske myndigheder og domstole kan behandle anmodninger om retshjælp fra og fremsende anmodninger om retshjælp til Den Europæiske Anklagemyndighed (EPPO) efter almindelige regler om staters gensidige retshjælp i straffesager. Justitsministeren kan fastsætte nærmere regler herom.” 16 17 18 19 General Introduction 50 Denmark special soft-law for the implementation of the International Law, e.g. the European Convention on Mutual Assistance in Criminal Matters (ETS No. 030), which Denmark accepts. The relevant headings from this document, present an insight into the actual process of legal aid, if requests come in (legal aid coming in to Danish Authorities, e.g. by the EPPO or EDPs 21 ): “2. Police investigation and case management 2.1. Incoming legal aid requests (legal requests to Denmark) 2.1.1. The police are doing their normal work This means that the work that would normally be carried out by the police in a corresponding Danish case must also be carried out by the police in the foreign case. For details on the actual response to the foreign request, see 3.1.4. 2.1.2. Prioritization as corresponding Danish case When Denmark receives a request for legal aid from another country, the processing of the request must be treated with the same speed and priority as a similar national case. 2.1.3. Request for special procedure when carrying out investigative steps, presence of foreign representatives, etc. You must be aware of whether the requesting country has made demands for form and procedure, such as e.g. internal court hearing. This should be respected as far as possible, unless it would conflict with basic Danish legal principles, cf. the EU Legal Aid Convention, art. 4 pcs. 1. For example, it is regularly seen that some countries request that an interrogation be carried out in court. Even if, in a national case, one might not consider that an internal judicial inquiry was necessary, one should comply with the request of the requesting country. Another example is the presence of foreign authorities during the execution of the investigative step, e.g. search, questioning or the like, which is often appropriate because it is the foreign authority that often knows the case best, and therefore knows what they are looking for. In this connection, it is emphasized that foreign authorities are not authorised to exercise their authority in Denmark, which is why they can only participate as observers. 21 A possible scenario would be that a German EDP from the EPPO Regional Office of Hamburg wants to assess information in a VAT fraud case, which involves a Danish Economic Operator. He/She would need to contact the EPPO chamber and inform them that he/she intends to obtain information from Danish authorities (because he/she suspects information to be found at a Danish premise...). Then next, the EPPO would need to send a formalized, incoming legal aid request, be mentioning § 107a of the Danish Administration of Justice Act, to the Danish Authorities (in an accepted language) and by stating the common information described in the Guidelines. 20 General Introduction EPPO/OLAF Compendium 51 3. Preparation 3.1. Incoming legal aid requests (legal requests to Denmark) 3.1.1. Can you provide legal aid in the given case? When a request for legal aid is received from abroad, the prosecution must assess whether the Danish authorities can provide the legal aid requested by the foreign authority. The starting point is – following an analogous application of the Judicial Administration Act – that if Danish police could carry out the investigation step in question in a similar Danish case, then it is also possible to carry out the investigation step on the basis of a foreign legal request. This also applies even if there is no agreement between Denmark and the country requesting legal aid. If a country requests investigative steps that would be contrary to the rules of the Administration of Justice Act, e.g. if wiretapping is requested in a theft case where the crime requirement in the Administration of Justice Act is not met, the request cannot be granted. Instead, you can contact the requested country and inform them of which investigative step comes closest to the request, and then agree on how the request should be answered. If legal aid is to be refused, the Attorney General must be informed of this, cf. below i 3.1.2.1. 3.1.1.2. Languages accepted by Denmark The incoming legal requests must be sent in a language that is accepted by Denmark. You can see them at the link below: https://www.coe.int/en/web/conventions/full-list (Accessed 31 December 2024). 3.1.2. Refusal 3.1.2.1. Refusal to provide legal aid is announced by the Attorney General. If the prosecution considers that a request for legal aid cannot be granted, the case must be sent to the Attorney General with detailed reasons for the refusal. The Attorney General will then notify the foreign authority of the refusal and the reason for this. In the next sections, you can read about different situations in which a refusal may come into question 3.1.2.2. Double criminality Since we apply the Administration of Justice Act analogously in the field of legal aid, this also means that in the event of an intrusive investigative step – e.g. seizure, search or edition – a requirement is made that the foreign criminal matter that Denmark has been asked for legal assistance to investigate is also punishable under Danish law and that the general conditions of criminality in the Criminal Code are met. In this connection, the question of limitation under Danish law can also be included. 3.1.2.3. Is there a death penalty for the crime in question? Danish authorities cannot comply with a foreign authority’s request for legal aid if the foreign penal provision for the crime sought to be solved authorises the death penalty, General Introduction 52 Denmark unless the requesting country makes a statement that the death penalty will not be requested in the specific case, or that a possible death penalty will not be carried out. 3.1.2.4. Political/military crimes The Danish authorities can also refuse to provide legal aid in connection with the investigation of crimes under military criminal law and crimes that are considered to be political crimes. 3.1.2.5. See you in the same way Several countries, including Denmark, have reserved the right to refuse to grant a court request with reference to the prohibition against double prosecution (ne bis in idem), i.e. if the person in question has already been convicted or acquitted of the matter currently being investigated, as such prosecution is considered to be contrary to general legal principles. 3.1.2.6. Resources Particularly extensive/expensive investigative steps should be discussed with the requesting foreign authority. An agreement can perhaps be found in relation to the distribution of costs, as the starting point for ordinary forms of legal aid is that it is the executing country that pays expenses associated with the provision of legal aid. See more about costs in general below 3.2.4.2. 3.1.2.7. The crime requirement is not met If a country requests investigative steps that would be contrary to the rules of the Administration of Justice Act, e.g. if wiretapping is requested in a simple theft case where the crime requirement in the Administration of Justice Act is not met, the request cannot be granted. It can be considered whether we can instead help with other interventions that can be permitted under Danish law. 3.1.3. Interventions that require a court order in Denmark 3.1.3.1. Danish rules apply When legal aid is provided to a foreign authority in the form of an investigation in Denmark, it is important that this is done in accordance with the rules of the Administration of Justice Act. This means that even if, according to the foreign rules, e.g. may be the public prosecutor who can decide that wiretapping or other interventions must take place, it will still require a warrant issued by the Danish courts to carry out the wiretapping in Denmark, as the intervention must be legal according to Danish rules. Certain rules in the Administration of Justice Act have been inserted only for application in cases of requests for legal aid from abroad. This concerns Section 190 and Section 191 on the questioning of witnesses and Section 783, subsection 5, and Section 806, subsection 7 as regards interference with the confidentiality of communications and edition. General Introduction EPPO/OLAF Compendium 53 Of relevant practice, reference can be made to U 1972.600 H and U 1988.203 V, concerning seizure in Germany and the USA, respectively, based on an analogous application of the rules of the Administration of Justice Act, U.2006.3094 “the prosecution’s request for the edition of documents for use in a criminal case in Russia granted” and U.2005.3108 “Danish prosecution’s interrogation in England carried out in violation of section 750 of the Administration of Justice Act”. 3.1.3.2. Assistance lawyers, defender In relation to interrogations etc. of suspects, accused persons and witnesses/victims, the Danish rules on the appointment of a defence counsel or legal aid apply. If a corresponding Danish case would thus have given rise to the appointment of a lawyer for the person to be questioned, this will also be the starting point when the questioning is carried out at the behest of a foreign authority requesting legal aid. You can read more about the legal position of victims in foreign criminal cases in the Attorney General’s announcement, the section on Guidance of aggrieved parties etc. 3.1.4. The answer itself 3.1.4.1. That is the lawyer’s responsibility The response to a legal request must be made by a judicial authority. The police circles are a judicial authority. In practice, it should be the public prosecutor’s office, so that the request is signed by a lawyer. There is nothing to prevent report material drawn up by the police being attached, which sheds light on the information the foreign authority wants, and the attached material can be widely referred to in the letter to be sent to the foreign authority. 3.1.4.2. The form of the answer, translation and appendix It is important to note that not all countries have the same direct approach to communication as we have here at home. Also remember that it must be easy to translate. The answer should therefore be written in polite, simple and easily translatable language. The response itself should be sent in a language that is accepted by the requesting country, while any attachments such as police reports and court records do not need to be translated. See more about translation below 3.2.4.2. 3.1.4.3. Answered directly or via the Attorney General The starting point within the Nordic countries, the EU and Schengen is that a response to a foreign legal aid request must be sent directly to the requesting authority. The address will often appear in the material sent. If the legal request from the foreign authority is sent through this, the Attorney General will write in the acknowledgment letter to the foreign authority that the answer will be sent directly from the police department. Requests from other countries must be answered via the Attorney General. General Introduction 54 Denmark 3.1.4.4. Dialogue with the foreign country/authority/prosecutor If you are in doubt about what the foreign authority wants to achieve with the legal request, it is a good idea to contact the relevant authority directly. In this way, it is ensured that questions of doubt are clarified in advance, so that it is not necessary to respond to a follow-up legal request on the same matter. 3.1.4.5. Forms of communication The starting point is that correspondence about legal aid takes place by letter or fax in cases where secure communication via e-mail is not possible. However, correspondence can – in particularly urgent cases – also be forwarded via NEC’s communication centre or Eurojust. […].” 22 3. Projects of the European Council and the EU for better communication of non-participating countries with the EPPO (2023–2025) The current status of cooperation possibilities between the Danish authorities and the EPPO might evolve to a more EU centralized system in the next years till 2026. The country might be involved additionally in an initiative of the European Council from 2022 and 2023: In the future it is possible, as said by the European Committee On Crime Problems (CDPC) and the Committee of Experts on the Operation of European Conventions on Co-Operation in Criminal Matters (PC-OC) that Denmark will be invited with other states to a new legal instrument, which ensures the cooperation of EPPO with non-participating Member States (09/2022). 23 The PC-OC will deliver till 31 December 2023 a “Draft Protocol to the European Convention on Mutual Assistance in Criminal Matters (ETS 30) on the relations with the European Public Prosecutor’s Office” 24 . 22 The Danish Version can be obtained and read by clicking on the link below (it is primarily addressed at Danish authorities and experts but it at the same time presents a valuable insight to e.g. the EPPO Legal Secretariat, the EPPO SNEs, OLAF staff or the Commission Services concerned with implementing new instruments or designing new laws for the European Council or EU Drafts intended to be submitted to the EU Parliament in the near future) https://vidensbasen.anklagemyndigheden.dk/h/6dfa19d8-18cc-47d6-b4c4-3bd07bc15ec0/VB/7e5177c6-fdbd4631-b28c-401abb152d29?showExact=true. Accessed 31 December 2024. If e.g. an EU Parliamentarian could convince the Danish Government, he could point at the fact how complicated the legal aid system of Denmark with the EPPO is nowadays and how much more efficient it would become if Denmark just joins the EPPO. 23 See https://rm.coe.int/list-of-decisions-of-the-32nd-pc-ocmod-meeting/1680a84a92. Accessed 31 December 2024. 24 See https://rm.coe.int/pc-oc-en/1680a64f4a. Accessed 31 December 2024. 21 22 EPPO/OLAF Compendium 55 C. Cooperation with Danish Justice Authorities The cooperation with Danish Justice authorities is important in cross-border sales fraud scenarios, in customs fraud related cases as well as in huge infrastructure projects e.g. in the Baltic sea Region (either close to the border or e.g. in off-shore wind parks). The EU has a lot of fishing zones around the borders of Denmark and Germany and the Baltic Sea is de facto a major transport route for items shipped from or to the internal market of the EU. The risk of high damaging frauds is real and the past has shown that Eurojust had to deal with cases that involved either Danish authorities for the investigation or Danish nationals, which were involved in conduct that was investigated. It might as well happen that Europea citizens residing in Denmark “try to hide” from the jurisdiction of the EPPO, like criminals could try to do as well in Poland, Hungary (but here the EPPO has a Working Arrangement), Sweden or Ireland. It is therefore important to assess whether the EPPO may request on the grounds of mutual recognition or other Danish laws e.g. the extradition of natural persons. I. Hypothetical considerations on the impact of the EPPO investigations under Art. 105 EPPO Regulation for Danish justice authorities The Regulation addresses the communication of the EPPO with non-participating countries. It is therefore realistic and accepts that these countries were sceptical about the new EU institution and reluctant in the political debate but it in the same vein enforces the EU’s power in the area of criminal justice and realizes the idea that an internal market shall not been an internal market for criminals. Therefore Art. 104 and 105 EPPO Regulation enable the EPPO to connect with these countries on a formal basis. II. Danish Participation in Eurojust Denmark can be contacted via Eurojust 25 according to the “Agreement on criminal justice cooperation between Eurojust and Denmark” 26 . But be aware that Denmark is not part of it anymore since 2019. For the establishment of JITs, the EJN and Eurojust have issued a practical Guide in 2021, which we refer to. 25 Be aware of the current information displayed on its website, https://www.eurojust.europa.eu/states-and-partners/member-states/denmark: “The Danish team is headed by Jesper Hjortenberg, who is the Representative for Denmark since December 2019. Before, he served as National Member for Denmark since September 2010. In 2021, the Danish team was involved in 98 new cases, 7 coordination meetings, and 8 joint investigation teams.” 26 See https://www.eurojust.europa.eu/sites/default/files/InternationalAgreements/Eurojust-Denmark-2019-1007_EN.pdf. Accessed 31 December 2024. 1 2 3 4 Danish Authorities Investigating PIF Acquis Offences 62 Denmark 1. Initiation of investigations into budget, customs and VAT fraud in Denmark and allocation of competences a) Initiation of Investigations by Danish Police and Prosecutors .............................. 63 b) Other Relevant sources of the indications for a criminal PIF offence falling within the competence of Danish Authorities............................... 64 aa. Jurisdiction of Danish Prosecutors .......................... 64 (1) Danish Main Territory .................................. 64 (2) Greenland and Faroe Islands .............................. 64 bb. Criminal Complaint and Notification Obligations of Danish Authorities to Report Fraud, Corruption and Embezzlement ..................... 65 (1) Determination of the competence and verification of Crime Reports ............. 74 (2) The Union standards, Art. 24 para 6 et seq. EPPO Regulation ........................ 74 cc. How to assess and verify the suspicion level according to the CPC for a criminal offence falling within the competence .......................... 76 (1) Focusing the investigation on one person, a group of persons or legal person .............................. 76 (a) Investigations against natural persons ............. 77 (b) Investigations against legal persons and their criminal liability (Strafansvar for juridiske personer) according to Sections 25, 26, 27 (5th chapter) of the Danish Criminal Code ............. 78 (2) Conditions of Criminality ...................... 80 (3) The PIF offences in Denmark .......................... 80 (a) Danish Criminal Code ............................ 81 (aa) Advantage or Gift Promising ................. 81 (bb) Forgery Offences (Sections 171 et seq.)81 (cc) Property Crimes (Embezzlement, Fraud – Sections 276 et seq.) ......................... 83 (dd) VAT Act Offences ................... 94 (ee) Tax Control Act ......................... 95 (ff) Penal Provisions of the Tobacco Tax Act .......................... 96 (gg) Further PIF Acquis Offences ...... 97 dd. Examples and precedents ..................................... 98 (1) Fraud ........................ 99 (a) Revenue frauds ..... 99 (b) Expenditure frauds .............................. 99 Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 63 (2) Corruption offences ................................ 100 (3) Money laundering with PIF crimes ..................... 100 a) Initiation of Investigations by Danish Police and Prosecutors Regularly, the police is the main investigator in Denmark. It is an investigation authority and can act on its own (proprio motu) or due to reports of criminal offences. The Danish Code on the Administration of Justice rules on this situation expressis verbis: Chapter 67 Investigation, coercive measures, etc. General provisions on Investigation Section 742 29 Reports of criminal offences are submitted to the police. Paragraph 2. The police can initiate investigations on their own initiative or on their own initiative when there is reasonable suspicion that a criminal offence pursued by the public authorities has been committed. Section 742a 30 Complaints under section 742(1) that only concern theft of bicycles and theft of bicycles must be submitted to the police using the digital solution provided by the police (digital self-service). Section 743 31 The purpose of the investigation is to establish whether the conditions for imposing criminal liability or other criminal proceedings are met, to provide information for the decision of the case and to prepare the case before the court. 29 § 742 Anmeldelser om strafbare forhold indgives til politiet. Stk. 2. Politiet iværksætter efter anmeldelse eller af egen drift efterforskning, når der er rimelig formodning om, at et strafbart forhold, som forfølges af det offentlige, er begået. 30 § 742 a Anmeldelse efter § 742, stk. 1, der alene vedrører tyveri af cykler og brugstyveri af cykler, skal indgives til politiet ved anvendelse af den digitale løsning, som politiet stiller til rådighed (digital selvbetjening). 31 § 743 Efterforskningen har til formål at klarlægge, om betingelserne for at pålægge strafansvar eller anden strafferetlig retsfølge er til stede, og at tilvejebringe oplysninger til brug for sagens afgørelse samt forberede sagens behandling ved retten. 6 Danish Authorities Investigating PIF Acquis Offences 64 Denmark Section 744 32 The police shall report as soon as possible on the interviews carried out and on other investigative steps, unless otherwise provided At this primary stage the suspect and later the accused have rights for their defence. See below → Some provisions of defence laws. The Danish Prosecution prosecutes financial crime with its specialized State Prosecutor for Serious Economic and International Crime. Still normal prosecution offices may become aware of offences such as bribery, money laundering or fraud and embezzlement relating to EU money and will then proceed with actions based on the rules of the Danish Judicial Code, Retsplejeloven. b) Other Relevant sources of the indications for a criminal PIF offence falling within the competence of Danish Authorities The other relevant sources include reporting obligations to other authorities than the police and other sources to discover EU frauds and EU related PIF crimes in Denmark. aa. Jurisdiction of Danish Prosecutors (1) Danish Main Territory The jurisdiction for offences on the Danish territory is partly determined by the Danish Criminal Code but as well by s. 742 Retsplejeloven et seq. The rules of the Code of Judicial Procedure relate to jurisdiction matters. The classical jurisdiction over PIF-related offences is prescribed by Chapter 2 of the Straffeloven, which contains Section 6 with rules on territory, and section 7 with rules on the wide-known nationality principle, which is common in the international legal area. (2) Greenland and Faroe Islands Most Danish Acts contain a sentence to the applicability in Greenland and the Faroe Islands: “The law does not apply to the Faroe Islands and Greenland.” Thus the jurisdiction is not extended to these vast land areas. Or like in the Tobacco Tac Act the places in these land areas are equated with places outside the EU: “Section 36 a The Faroe Islands and Greenland as well as Copenhagen’s Free Harbor are equated in the law with places outside the EU.” The VAT Act contains the same clarification: “The VAT Act 32 § 744 Politiet udfærdiger snarest rapport om de afhøringer, der foretages, og om andre efterforskningsskridt, medmindre oplysning herom foreligger på anden måde. 7 8 9 10 11 12 Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 65 does not apply to the Faroe Islands and Greenland. The Faroe Islands and Greenland are not members of the EU.” bb. Criminal Complaint and Notification Obligations of Danish Authorities to Report Fraud, Corruption and Embezzlement Financial crime e.g. the offence of money laundering with money that is derived of EU fraud cases in another EU country might involve Denmark. The Danish Prosecution Office will only act if it gets informed about suspicious conduct. The legislator has issued a Special Guidance on the Reporting Obligations for suspicious activities in the Online Transfer of Money and Assets. Order on submission of notifications etc. to the State Attorney for Special Economic and International Crime Pursuant to Section 7, subsection 6, and Section 37, subsection 3, in the Act on Preventive Measures Against Money Laundering and Financing of Terrorism, cf. Executive Order No. 1022 of 13 August 2013, stipulates: Field of application Section 1 33 This executive order applies to the companies, persons and authorities covered by the Act on preventive measures against money laundering and the financing of terrorism. PCS. 2. The executive order applies to notifications of transactions or inquiries where it is suspected that the transaction or inquiry is or has been connected to money laundering or the financing of terrorism, to the State Attorney for Special Economic and International Crime, cf. Section 7 of the Act on preventive measures against money laundering and terrorist financing. 33 Bekendtgørelse om indsendelse af underretninger m.v. til Statsadvokaten for Særlig Økonomisk og International Kriminalitet. I medfør af § 7, stk. 6, og § 37, stk. 3, i lov om forebyggende foranstaltninger mod hvidvask af udbytte og finansiering af terrorisme, jf. lovbekendtgørelse nr. 1022 af 13. august 2013, fastsættes: Anvendelsesområde § 1 Denne bekendtgørelse finder anvendelse på de virksomheder, personer og myndigheder som er omfattet af lov om forebyggende foranstaltninger mod hvidvask af udbytte og finansiering af terrorisme. Stk. 2. Bekendtgørelsen finder anvendelse på underretninger om transaktioner eller henvendelser, hvor der er mistanke om, at transaktionen eller henvendelsen har eller har haft tilknytning til hvidvask eller finansiering af terrorisme, til Statsadvokaten for Særlig Økonomisk og International Kriminalitet, jf. § 7 i lov om forebyggende foranstaltninger mod hvidvask af udbytte og finansiering af terrorisme. 13 Danish Authorities Investigating PIF Acquis Offences 66 Denmark Digital submission Section 2 34 Notifications in accordance with Section 1, subsection 2, must be submitted digitally to the State Attorney for Special Economic and International Crime. PCS. 2. Notifications must be made via www.hvidvask.dk, unless otherwise agreed with the State Attorney for Special Economic and International Crime. PCS. 3. The notification must contain the information described in appendix 1 to this executive order. PCS. 4. Notifications must be submitted in the XML format reproduced on www.hvidvask.dk Section 3 35 Companies, persons and authorities covered by Section 1, subsection 1, must, after digital submission of a notification etc., cf. Section 2, before the end of the following banking day, check whether the notification has been accepted or rejected. Language requirements Section 4 36 The notifications, cf. Section 1, subsection 2, must be written in Danish or English. 34 Digital indsendelse § 2 Underretninger i henhold til § 1, stk. 2, skal indsendes digitalt til Statsadvokaten for Særlig Økonomisk og International Kriminalitet. Stk. 2. Underretninger skal ske via www.hvidvask.dk, medmindre det sker på en anden måde efter aftale med Statsadvokaten for Særlig Økonomisk og International Kriminalitet. Stk. 3. Underretningen skal indeholde de oplysninger, som er beskrevet i bilag 1 til denne bekendtgørelse. Stk. 4. Underretningerne skal indgives i det XML-format, som er gengivet på www.hvidvask.dk. 35 § 3 Virksomheder, personer og myndigheder omfattet af § 1, stk. 1, skal, efter digital indsendelse af en underretning mv., jf. § 2, inden udløbet af den efterfølgende bankdag kontrollere, om underretningen er accepteret eller afvist. 36 Sprogkrav § 4 Underretningerne, jf. § 1, stk. 2, skal være affattet på dansk eller engelsk. Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 67 Breakdown in the digital notification solutions Section 5 37 In the event of long-term IT problems on the website www.hvidvask.dk, notification in XML format must be made using e-mail or other electronic media in agreement with the State Attorney for Special Economic and International Crime. PCS. 2. With long-term IT problems, cf. subsection 1, means breakdown or temporary capacity reduction etc., which means that the website www.hvidvask.dk is unavailable for 8 hours in a row in the period between 8 and 16 on a weekday. However, this does not include planned shutdowns for the purpose of updating, which have been previously announced on the website. Punishment Section 6 38 Intentional or grossly negligent violation of Sections 2, 3, 4 and 5, subsection 1, in this executive order is punishable by a fine. PCS. 2. Companies etc. can be imposed. (legal entities) criminal liability according to the rules in Chapter 5 of the Criminal Code. Entry into force Section 7 39 The executive order enters into force on 15 June 2014. The Danish Financial Supervisory Authority, 10 February 2014 Ulrik Nødgaard/Mark Andrew Rønnenfelt 37 Nedbrud i de digitale underretningsløsninger § 5 Ved længerevarende IT-problemer på hjemmesiden www.hvidvask.dk skal underretning i XML-format ske under anvendelse af e-mail eller andet elektronisk medie efter aftale med Statsadvokaten for Særlig Økonomisk og International Kriminalitet. Stk. 2. Med længerevarende IT-problemer, jf. stk. 1, menes nedbrud eller midlertidig kapacitetsnedgang mv., som indebærer, at hjemmesiden www.hvidvask.dk er utilgængelig 8 timer i træk i tidsrummet mellem kl. 8 og 16 på en hverdag. Heri medregnes dog ikke planlagte nedlukninger med henblik på opdatering, som har været annonceret forinden på hjemmesiden. Straf 38 Straf § 6 Forsætlig eller groft uagtsom overtrædelse af §§ 2, 3, 4 og 5, stk. 1, i denne bekendtgørelse straffes med bøde. Stk. 2. Der kan pålægges selskaber mv. (juridiske personer) strafansvar efter reglerne i straffelovens 5. kapitel. 39 Ikrafttræden § 7 Bekendtgørelsen træder i kraft den 15. juni 2014. Finanstilsynet, den 10. februar 2014 Ulrik Nødgaard / Mark Andrew Rønnenfelt Danish Authorities Investigating PIF Acquis Offences 68 Denmark Annex 1 Description of the structure of the XML file 40 The structure of the XML file depends on the suspicion that is the basis for the notification. Notifications relating to concrete suspicious financial transactions consist of the following elements and are structured as follows: - Front page - Transaction(s) - Sender - Party - Recipient - Party Notifications, which relate to concrete suspicious events and not grounds for suspicious financial transactions, consist of the following elements and are structured as follows: - Front page - Event - Party(s) 40 Bilag 1 Beskrivelse af XML filens struktur XML filens opbygning afhænger af mistanken, der er grundlaget for underretningen. Underretninger, der vedrører konkrete mistænkelige finansielle transaktioner, består af følgende elementer og er struktureret som følger: - Forside ◦ Transaktion(er) ▪ Afsender ● Part ▪ Modtager ● Part Underretninger, som vedrører konkrete mistænkelige hændelser og ikke grunder i mistænkelige finansielle transaktioner, består af følgende elementer og er struktureret som følger: - Forside ◦ Hændelse ▪ Part(er) Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 69 Description of the XML file’s elements and definitions 41 The front page must contain basic information about the notification, including information about the notified court, date of notification, whether the suspicion relates to money laundering (STR) or terrorist financing (TFR), as well as a description of the suspicion or indication of indicators. Transaction(s) The transaction must contain information about the individual transaction(s), including information about transaction number, transaction date, transaction type, amount converted to DKK, as well as sender and recipient. Sender The sender must contain information relating to the sender/source of the transaction, including information about the source country, type of funds and the party that is the sender. Recipient Recipient must contain information relating to the recipient/destination of the transaction, including information on destination country, type of funds and the receiving party. Party By party is meant information about an account, as well as a person or company. Account By account is meant a bank account, custody account, credit card, gambling account or similar. A distinction is made between accounts, and a distinction is made between accounts belonging to regular customers and other accounts. 41 Beskrivelse af XML filens elementer og definitioner Forside Forsiden skal indeholde grundinformation om underretningen, herunder oplysninger om underretter, dato for underretning, om mistanken vedrører hvidvask (STR) eller terrorfinansiering (TFR) samt beskrivelse af mistanken eller angivelse af indikatorer. Transaktion(er) Transaktionen skal indeholde information om den eller de enkelte transaktion(er), herunder oplysninger om transaktionsnummer, transaktionsdato, transaktionstype, beløb omregnet til DKK, samt afsender og modtager. Afsender Afsender skal indeholde information, der vedrører transaktionens afsender/kilde, herunder oplysninger om kildeland, type af midler og den part, som er afsender. Modtager Modtager skal indeholde information, der vedrører transaktionens modtager/destination, herunder oplysninger om destinationsland, type af midler og den modtagende part. Part Med part menes der oplysninger om konto, samt person eller virksomhed. Konto Med konto menes der bankkonto, depot, kreditkort, spillekonto eller tilsvarende. Der skelnes mellem konti, og der skelnes mellem konti tilhørende faste kunder og øvrige konti. Person Med person menes der fysisk person. Der skelnes mellem personer, der er faste kunder, og øvrige personer. Virksomhed Med virksomheder menes alle juridiske personer inklusiv foreninger, fonde og lignende. Der skelnes mellem virksomheder der er faste kunder, og øvrige virksomheder. Danish Authorities Investigating PIF Acquis Offences 70 Denmark Person By person is meant a natural person. A distinction is made between persons who are regular customers and other persons. Corporation By companies is meant all legal persons including associations, foundations and the like. A distinction is made between companies that are regular customers and other companies. Description of minimum requirements for the XML file’s content 42 If the above-mentioned elements are missing from the notification based on the description of the structure, the individual elements must contain at least the following information: Home - Notifies - Date of notification - Manual or electronic filling - Notification type (STR) or (TFR) - Local currency (DKK) - Suspicion or indicator Transaction - Unique transaction number 42 Beskrivelse af minimumskrav til XML-filens indhold Indgår de ovennævnte elementer i underretningen ud fra beskrivelsen af strukturen, skal de enkelte elementer som minimum indeholde nedennævnte oplysninger: Forside - Underretter - Dato for underretning - Manuel eller elektronisk udfyldelse - Underretningstype (STR) eller (TFR) - Lokal valuta (DKK) - Mistanke eller indikator Transaktion - Unikt transaktionsnummer - Transaktionsdato - Transaktionstype - Beløb i DKK Afsender - Fondstype (type af midler) - Kildeland - Afsenderpart (se parter) Modtager - Fondstype (type af midler) - Destinationsland - Modtagerpart (se parter) Hændelse - Part(er) Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 71 - Transaction date - Transaction type - Amount in DKK Shipment - Fund type (type of funds) - Country of origin - Sending party (see parties) Recipient - Fund type (type of funds) - Country of destination - Recipient party (see parties) Incident - Party(s) Parties 43 43 Parter Person (Fast kunde) - Fornavn(e) - Efternavn - Fødselsdato - CPR-nr. eller andet ID (se ID oplysninger) - Adresse (se adresse) Person - Fornavn(e) - Efternavn Konto (fast kunde) - Pengeinstitut - SWIFT eller andet PI ID (eksempelvis registreringsnummer) - Kontonummer - Konto-/fuldmagtshaver (se person og virksomhed) - Rolle (eksempelvis konto eller fuldmagtshaver) Konto - SWIFT eller andet PI ID (eksempelvis registreringsnummer) - Kontonummer Virksomhed (fast kunde) - Navn - CVR-nr. (hvis dansk virksomhed) - Registreringsland - Adresse (se adresse) Virksomhed - Navn Øvrige elementer Adresse - Adressetype - Adresse - Postnummer (hvis dansk adresse) - By - Land ID Oplysning - ID type Danish Authorities Investigating PIF Acquis Offences 78 Denmark Section 23 48 The penalty provided for an offence includes everyone who, by incitement, advice or deed, has contributed to the crime. The penalty can be reduced for those who only wanted to provide less significant assistance or strengthen an already formed intention, as well as when the crime has not been completed or an intended contribution has failed. PCS. 2. The penalty can also be reduced for those who contribute to the violation of a special obligation, but are themselves outside of this. PCS. 3. Unless otherwise determined, punishment for complicity in offences that are not punishable by a higher penalty than imprisonment for 4 months may be waived when the complicit only wanted to provide less significant assistance or strengthen an already formed intention, and when his complicity is due to negligence. Section 24 49 The accomplice is not punished if, under the conditions specified in Section 22, he obstructs the execution or takes actions which would have obstructed the execution, if this had not, unbeknownst to him, failed or been averted in some other way. (b) Investigations against legal persons and their criminal liability (Strafansvar for juridiske personer) according to Sections 25, 26, 27 (5th chapter) of the Danish Criminal Code Chapter 5 of the Criminal Code Criminal liability for legal persons Section 25 50 A legal person can be punished with a fine when it is determined by or pursuant to law. 48 § 23. Den for en lovovertrædelse givne straffebestemmelse omfatter alle, der ved tilskyndelse, råd eller dåd har medvirket til gerningen. Straffen kan nedsættes for den, der kun har villet yde en mindre væsentlig bistand eller styrke et allerede fattet forsæt, samt når forbrydelsen ikke er fuldbyrdet eller en tilsigtet medvirken er mislykkedes. Stk. 2. Straffen kan ligeledes nedsættes for den, der medvirker til krænkelse af et særligt pligtforhold, men selv står uden for dette. Stk. 3. For så vidt ikke andet er bestemt, kan straf for medvirken ved lovovertrædelser, der ikke straffes med højere strafend fængsel i 4 måneder, bortfalde, når den medvirkende kun har villet yde en mindre væsentlig bistand eller styrke et allerede fattet forsæt, samt når hans medvirken skyldes uagtsomhed. 49 § 24. Den medvirkende straffes ikke, hvis han under de i § 22 angivne betingelser hindrer fuldbyrdelsen eller foretager handlinger, som ville have hindret fuldbyrdelsen, hvis denne ikke, ham uafvidende, var mislykkedes eller ad anden vej var afværget. 50 5. kapitel Strafansvar for juridiske personer § 25. En juridisk person kan straffes med bøde, når det er bestemt ved eller i medfør af lov. Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 79 Section 26 51 Provisions on criminal liability for companies etc. includes, unless otherwise specified, any legal person, including joint-stock, limited liability and cooperative companies, partnerships, associations, foundations, estates, municipalities and state authorities. PCS. 2. Furthermore, such provisions cover sole proprietorships, insofar as these, in particular with regard to their size and organisation, can be equated with those in subsection 1 mentioned companies. Section 27 52 Criminal liability for a legal person requires that an offence has been committed within its business that can be attributed to one or more persons linked to the legal person or the legal person as such. As far as punishment for attempts is concerned, section 21, subsection 3, corresponding use. PCS. 2. State authorities and municipalities can only be punished in connection with violations committed when carrying out activities that correspond to or can be equated with activities carried out by private individuals. A very important provision on legal persons can be found at the very end of the Danish Criminal Code: Chapter 29 Special provisions concerning legal persons Section 306 53 Criminal liability may be imposed on companies etc. (legal persons) in accordance with the rules of Chapter 5 for violation of this Act. 51 § 26. Bestemmelser om strafansvar for selskaber m.v. omfatter, medmindre andet er bestemt, enhver juridisk person, herunder aktie-, anpartsog andelsselskaber, interessentskaber, foreninger, fonde, boer, kommuner og statslige myndigheder. Stk. 2. Endvidere omfatter sådanne bestemmelser enkeltmandsvirksomheder, for så vidt disse navnlig under hensyn til deres størrelse og organisation kan sidestilles med de i stk. 1 nævnte selskaber. 52 § 27. Strafansvar for en juridisk person forudsætter, at der inden for dens virksomhed er begået en overtrædelse, der kan tilregnes en eller flere til den juridiske person knyttede personer eller den juridiske person som sådan. For så vidt angår straf for forsøg, finder § 21, stk. 3, tilsvarende anvendelse. Stk. 2. Statslige myndigheder og kommuner kan alene straffes i anledning af overtrædelser, der begås ved udøvelse af virksomhed, der svarer til eller kan sidestilles med virksomhed udøvet af private. 53 29. kapitel Særlige bestemmelser om juridiske personer § 306. Der kan pålægges selskaber m.v. (juridiske personer) strafansvar efter reglerne i 5. kapitel for overtrædelse af denne lov. 33 Danish Authorities Investigating PIF Acquis Offences 80 Denmark (2) Conditions of Criminality The prosecutors need to establish and assess the conduct and decide whether it is criminal or not. Therefore they need to determine as well the conditions for criminality, which are stipulated by the Criminal Code of Denmark (Strafvelloven). Chapter 3 and 4 ss. 13 et seq. contain the provisions, which are most relevant in this regard, i.e. rules on self-defence, which are not related to fraud offences, as well as insanity, negligence, attempts and forms of participation. Chapter 9 contains provisions that apply in the case that a person is acquitted and they establish other consequences of the crime. (3) The PIF offences in Denmark The following table summarises the relevant provisions that establish the PIF Acquis sector in Denmark: Sources and national sections 1: PIF Offences in Denmark CC fraud & forgery offences •Sections 171 et seq. •Sections 276 (property crimes) •Sections 278 embezzelement •Section 289a (Providing incorrect or misleading information in relation to the payment or repayment of customs duties or charges of the European Communities * must be read as EU today! CC corruption + AML offences •Section 122 CC •Section 290a Money laundering Tax and Customs offences •Section 289 (Violation of a particularly serious tax, customs, levy or subsidy legislation) •Section 289a •VAT Act Chapter 21 Penal provisions, ss. 81 et seq. •Act on structural measures relating to the fisheries sector Chapter 4 •Tobacco Tax Act, Chapter 4, s. 25 34 35 Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 81 (a) Danish Criminal Code As summarised above, the Danish Criminal Code ensures the criminalization of various so-called or at least strictly speaking offences, which can be interpreted as classical PIF Aquis offences. One of the main offences is s. 289a, which is still from another time when Denmark at least accepted the first PIF Protocol in former times. (aa) Advantage or Gift Promising With Section 122 the Danish Criminal Code criminalises giving a gift or another benefit to a public official in order to influence them to act or refrain from acting in the course of their service duties: Section 122 Anyone who unjustifiably gives, promises or offers someone who works in a Danish, foreign or international public service or position, a gift or other advantage to induce the person concerned to do or omit something in the service, is punished by a fine or imprisonment up to 6 years. 54 (bb) Forgery Offences (Sections 171 et seq.) Forgery offences are important as they are often used to accomplish a fraud offence and the forges shall mislead the relevant persons acting for the EU budget or collecting duties that add sums to it: Chapter 19 Crimes relating to means of evidence Section 171 Whoever uses a false document to deceive in legal matters is punished for document forgery. PCS. 2. A document is understood to be a written or electronic statement provided with a designation by the issuer, which appears to be intended to serve as evidence. PCS. 3. A document is false when it does not come from the specified issuer, or it is given content that does not come from this. Section 172. The penalty for document forgery is a fine or imprisonment for up to 2 years. PCS. 2. If document falsification is of a particularly serious nature, or if a greater number of conditions have been committed, the penalty may increase to imprisonment for 6 years. 54 § 122. Den, som uberettiget yder, lover eller tilbyder nogen, der virker i dansk, udenlandsk eller international offentlig tjeneste eller hverv, gave eller anden fordel for at formå den pågældende til at gøre eller undlade noget i tjenesten, straffes med bøde eller fængsel indtil 6 år. 36 37 38 Danish Authorities Investigating PIF Acquis Offences 82 Denmark Section 173 With a penalty as specified in Section 172, the person who uses a document bearing a genuine signature is considered to be deceiving in legal terms, when the signature has been obtained by mistake on a different document or on a document with different content than by the signatory intentional. Section 174 Whoever, in legal matters, makes use of a genuine document as relating to a person other than the person to whom it really concerns, or in any other way contrary to the provisions of the document, is punished by a fine or imprisonment for up to 6 months. Section 175 Whoever, in order to deceive in a legal relationship in a public document or book, in a private document or book, which according to the law or a special obligation is incumbent on the person concerned to draw up or keep, or in a medical, dental, midwife or veterinary certificate makes a false statement about any matter regarding which the statement is to serve as evidence, shall be punished by a fine or imprisonment for up to 3 years. PCS. 2. In the same way, whoever makes use of such a document or such a book as containing truth in legal matters is punished. PCS. 3. The provisions in subsection 1 and 2 apply correspondingly when the document or book has been completed or is kept on another readable medium. Section 176 Anyone who, in order to deceive in trade, makes use of objects which are unjustifiably provided with a public stamp or mark, which must give a guarantee for the object’s authenticity, nature, quality or quantity, is punished with a fine or imprisonment of up to 3 years. PCS. 2. A fine or imprisonment of up to 1 year shall be imposed on anyone who, in the same way, makes use of objects which are unjustifiably provided with a private stamp, brand or other designation that serves to indicate something about the object regarding matters which are of importance to trade. PCS. 3. The punishment as stated above applies to anyone who, in the same way, makes use of objects on which a legally affixed stamp, mark or designation has been distorted or removed. Section 177 Anyone who makes use of imitation or forged stamp paper, stamps, other stamps used to correct public taxes and fees and postage stamps is liable to imprisonment for up to 8 years. Anyone who makes use of previously used paper or brands on which the sign of Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 83 the previous use has been removed is considered to have a proportionately lesser penalty. PCS. 2. The rule in section 169 applies correspondingly with regard to stamps, postage stamps and similar means of release. Section 178 Anyone who, in order to separate someone from his rights, destroys, disposes of or renders completely or partially unusable a means of evidence that is suitable for use as such in a legal relationship is punished with a fine or imprisonment of up to 2 years. Section 179 Whoever, in order to deceive with regard to the boundaries of real property, land rights or rights with regard to streams or watercourses, places a false landmark or other mark for these or moves, removes, distorts or destroys such a mark, shall be punished by a fine or imprisonment until 3 years. (cc) Property Crimes (Embezzlement, Fraud – Sections 276 et seq.) The property crimes are enshrined in the Danish Criminal Code, ss. 276 et seq.: Chapter 28 Property crimes Section 276 Anyone who, without the consent of the possessor, takes away a third party’s movable thing in order to obtain for himself or others an unjustified gain by acquiring it, is punished for theft. Here and in the following, movable property is equated with a quantity of energy that has been produced, stored or put to use for the production of light, heat, power or movement or for other economic purposes. Section 276a Whoever gains unauthorised access to another’s house and without the owner’s consent takes another’s movable thing in order to obtain for himself or others an unjustified gain by acquiring it, is punished for burglary. Section 277 For illegal handling of lost property, the person is punished who, in order to obtain himself or other unjustified gain through it, appropriates a third party’s movable thing which is not in anyone’s custody, or which has come into the offender’s custody through the owner’s oversight or in a similar accidental way. 39 Danish Authorities Investigating PIF Acquis Offences 84 Denmark Section 278 For embezzlement, the person is punished who, in order to obtain unjustified gain for himself or others through it 1) appropriates a third party’s movable property that is in his custody, without the relationship falling under section 277, 2) waives the receipt of a loan or other loan for property or of a service for which consideration must be paid, 3) unlawfully consumes money entrusted to him, even if he was not obliged to keep it separate from his own wealth. PCS. 2. The provision in subsection 1, no. 1, does not include disposals of purchased items in respect of which a seller has reserved ownership until the purchase price has been paid. Section 279 Whoever, in order to thereby obtain unjustified gain for himself or others, by unlawfully inducing, reinforcing or exploiting a delusion, determines another to an act or omission, by which this person or someone for whom the act or the omission becomes decisive, a loss of fortune. Section 279a For data fraud, whoever unlawfully alters, adds or deletes information or programs for electronic data processing, or otherwise unlawfully seeks to influence the result of such data processing, in order to thereby obtain or other unjustified gain is punished. Section 280 For fraud of mandate, insofar as the relationship does not fall under Sections 276–279a, the person who, in order to thereby obtain or other unjustified gain, causes another loss of property 1) by misuse of an access created for him to act with legal effect for him or 2) knows, in a property matter, which it is incumbent on him to take care of for the other, to act against the latter’s interests. Section 281 Extortion is punishable, insofar as the relationship does not fall under Section 288, 1) the person who, in order to obtain unjustified gain for himself or others, threatens someone with violence, significant damage to property or deprivation of liberty, with making false accusations of criminal or dishonourable matters or revealing private matters, Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 85 2) the person who threatens someone to report or reveal a criminal matter or to make true dishonourable accusations in order to thereby obtain for himself or others a gain that is not adequately justified by the matter that gave rise to the threat. Section 282 Anyone who takes advantage of another person’s significant financial or personal difficulties, lack of insight, recklessness or an existing relationship of dependence to obtain or condition a performance in a contractual relationship that is significantly disproportionate to the consideration, or which is not must be paid for. Section 283 For fraud on the debtor, the person who thereby obtains unjustified gain for himself or others is punished 1) disposes of, pledges or otherwise disposes of property belonging to him over which a third party has acquired a right with which the act is incompatible, 2) after his estate has been taken into bankruptcy proceedings, or reconstruction proceedings have been initiated, takes actions to the effect that the assets and claims of the estate do not benefit the claimants, 3) by false pretences, embezzlement, pro forma transactions, significant gifts, disproportionate consumption, sale at a lower price, payment of or provision of security for outstanding debts or in any other similar way evades his assets or claims from serving his claimants or any individual of these for fulfilment. PCS. 2. If actions of the type specified under no. 3 are carried out to benefit a claimant, the latter will only be punished if, at a time when he anticipated that the debtor’s bankruptcy or restructuring proceedings were imminent, he determined the debtor to grant him such favour. Section 284 (Repealed) Section 285 The crimes mentioned in Sections 276, 276a and 278–283 are punishable by imprisonment for up to 1 year and 6 months. In those in section 283, subsection 2, mentioned case, the penalty for the debtor as well as for the beneficiary claimant can be reduced to a fine. PCS. 2. Illegal handling of lost property is punishable by a fine or imprisonment of up to 1 year and 6 months. Danish Authorities Investigating PIF Acquis Offences 86 Denmark Section 286 The penalty may increase to imprisonment for up to 6 years, when the crimes mentioned in Sections 276, 276a, 281 and 282 are of a particularly serious nature, particularly because of the method of execution, or because the crime was committed by several people in association or with the participation of weapons or other dangerous tools or means, or because of the significant value of the stolen items or the conditions in which they were found, or because the theft was committed as part of organised burglary, or because it is a systematic or organised extortion or when a larger number of crimes have been committed. PCS. 2. The penalty may increase to imprisonment for up to 8 years, when the crimes mentioned in Sections 278–280 and 283 are of a particularly serious nature, particularly because of the manner of execution, or because the crime was committed by several people in association, or as a result of the scope of the obtained or intended gain, or when a greater number of crimes have been committed. Section 287 If any of the crimes mentioned in Sections 276-283 are less punishable because of the circumstances in which the act was committed, the objects used or the loss of property suffered are of little importance or for other reasons, the penalty is a fine. In otherwise extenuating circumstances, the penalty may be waived. PCS. 2. Attempts to commit a crime covered by subsection 1, is punishable. Section 288 For robbery, the person who thereby obtains unjustified gain for himself or others by violence or threat of immediate use of violence is punished with imprisonment of up to 6 years 1) deprives or extorts someone of another’s movable property, 2) brings a stolen thing to safety or 3) forces someone to do an act or omission that results in a loss of property for the person assaulted or someone for whom the person is acting. PCS. 2. The penalty may increase to imprisonment for 10 years when a robbery is of a particularly serious nature, in particular because of its particularly dangerous nature, the method of execution or the extent of the obtained or intended profit, or because the perpetrator has entered a private home in order to commit robbery or when a greater number of crimes have been committed. Section 289 Anyone who, in order to thereby obtain or other unjustified gain, is guilty of a violation of a particularly serious nature of tax, customs, levy or subsidy legislation or of Section 289a is punished with imprisonment of up to 8 years. Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 87 PCS. 2. The provision in subsection 1 only applies if in the legislation referred to in 1 is referred to this provision. PCS. 3. When assessing an additional fine pursuant to section 50, subsection 2, in connection with violation of subsection 1, emphasis must be placed on whether the crime is of a particularly serious nature, particularly because of the way it was carried out, or because the crime was committed by several people in association, or when a larger number of crimes have been committed. Section 289a With a fine or imprisonment of up to 1 year and 6 months, whoever, for the purpose of decisions on the payment or repayment of customs duties or charges for or the payment or repayment of subsidies or support from Danish authorities or the institutions of the European Communities or other community bodies, is punished provides incorrect or misleading information or conceals information, including failing to fulfil an obligation to provide information that is important for the decision of the case with the intention of evading or other payment or with the intention of obtaining an unjustified payment to himself or others. PCS. 2. In the same way, whoever improperly exploits a legally obtained advantage with regard to payments as mentioned in subsection 1, and the person who improperly uses payments as mentioned in subsection 1 for purposes other than those for which they were originally allocated. However, this does not apply to benefits granted for private use. PCS. 3. The provisions in subsection 1 and 2 only apply where other legislation does not contain a corresponding regulation. PCS. 4. Violations of subsection 1 or no. 2 of a particularly serious nature is punished according to section 289. Section 290 For embezzlement, whoever unjustifiably receives or acquires or otherwise shares in profits obtained through a punishable offence, and whoever unjustifiably conceals, stores, transports, assist in the disposal or in a similar way subsequently works to ensure someone else the benefit of a punishable offence, unless the relationship is covered by section 290 a. PCS. 2. The penalty may increase to imprisonment for 6 years when the fraud is of a particularly serious nature, in particular due to the commercial or professional nature of the crime or as a result of the obtained or intended profit, or when a larger number of crimes have been committed. PCS. 3. Punishment according to this provision cannot be imposed on the person who receives dividends for usual maintenance from family members or cohabitants, or the Danish Authorities Investigating PIF Acquis Offences 94 Denmark Section 305 Those in Section 291, subsection 1 and 3, Section 293, subsection 2, Section 298 and Section 299, the offences referred to are prosecuted only at the aggrieved party’s request, unless the public interest requires prosecution. PCS. 2. The offences referred to in section 294 are subject to private prosecution. (dd) VAT Act Offences VAT offences are important as they concern the area of the EU budget. Despite Denmark not being bound by neither the PIF Directive nor the EPPO Regulation, it still has to ensure that it can pay its sums to the EU budget as a contributor. This money stems partly from the VAT sector and can only be provided if the economic operators do not defraud Danish authorities collecting VAT on behalf of the EU without fearing sanctions: Chapter 21 Penal provisions Section 81 Anyone who intentionally or grossly negligently is punished with a fine 1) submits incorrect or misleading information or conceals information for use in tax control or the control of payments pursuant to section 45, section 53, subsection 2, and Section 72 and Section 12 of the Act on Collection of Taxes and Duties etc., 2) violates section 8, subsection 1, 4th point, Section 23, subsection 4, 2nd pt., Section 30, subsection 2, Section 38, subsection 3, 3rd pt., Section 43, subsection 3, no. 1, 4 or 5, section 47, subsection 1, 1st point, subsection 2, 1st or 2nd point, subsection 3, 1st point, subsection 5, 1st, 4th or 5th point, or subsection 6, Section 50, 1st point, Section 50 b, Section 50 c, Section 52 a, subsection 1, 3, 5, 6 or 8, Section 52 b, Section 52 c, subsection 1–5, Section 53, subsection 1, 1st point, or subsection 2, 1st point, Section 56, subsection 3, 2nd pt., Section 57, subsection 1, 1st point, subsection 2, 2nd and 3rd pt., subsection 3, 2nd point, or subsection 4, 2nd pt., Section 62, subsection 9, Section 64, subsection 2, 1st point, Section 65, subsection 1, Section 70, subsection 2, Section 72, subsection 3 or 4, Section 74, subsection 2 or 4, Section 75, subsection 1, 2, 3, 4 or 7 or Section 78, subsection 1, 3) violates the reporting deadline in section 62, subsection 1 or 2, 4) fails to make a notification pursuant to section 65, subsection 2, 1st point, or violates the notification deadline in section 65, subsection 2, 2nd point, 5) fails to comply with an order pursuant to section 29, subsection 2, or Section 38, subsection 3, 1st point, 6) transfers, acquires, appropriates or uses goods or services for which no tax has been paid that should have been paid under this Act, or attempts to do so, or 7) in connection with forced auctions, provides false or misleading information or conceals information about the tax treatment of the forced auction sale. 40 Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 95 PCS. 2. In regulations which are issued pursuant to the law, a penalty of fine can be established for anyone who intentionally or grossly negligently violates the provisions of the regulations. A penalty of a fine can also be imposed for anyone who provides false or misleading information, conceals information or fails to carry out the necessary self-check of information about companies’ VAT registration numbers and associated names or addresses, as per rules in the Council’s implementing regulation (EU) no. 282/2011 of 15 March 2011 on measures to implement Directive 2006/112/EC on the common value added tax system must be notified and checked to determine the status of companies involved in taxable transactions with goods or services within the EU. PCS. 3. Anyone who commits one of the mentioned violations with the intention of evading tax from the state treasury or to unjustifiably obtain payments pursuant to Section 45, Section 53, subsection 2, and Section 72 as well as Section 12 of the Act on Collection of Taxes and Charges, etc., is punished with a fine or imprisonment of up to 1 year and 6 months, unless a higher penalty is due according to Section 289 of the Criminal Code. With a fine or imprisonment of up to 1 year and 6 months, unless a higher penalty is owed according to section 289 of the Criminal Code, whoever intentionally or grossly negligently runs a business subject to registration, regardless of whether the business has been refused registration according to section 62a, subsection 1, or the company has deregistered from registration pursuant to § 62a, subsection 5. PCS. 4. Anyone who, as part of a business, intentionally issues an invoice with incorrect content or issues other incorrect documentation for the delivery or purchase of goods or services, is punished by a fine or imprisonment of up to 1 year and 6 months, unless a higher penalty is due under Section 289 of the Criminal Code, if the documentation is suitable to be used as a basis for calculating a tax liability. If the act is committed through gross negligence, the penalty is a fine. PCS. 5. Anyone who, as part of a business, purchases goods or services on such favourable terms that the person concerned realizes that the supplier or provider will not fulfil his obligation to include the consideration in the tax equivalent or to settle the tax equivalent in a timely manner, is punished with a fine or imprisonment until 1 years and 6 months, unless a higher penalty is due under Section 289 of the Criminal Code. If the act is committed through gross negligence, the penalty is a fine. PCS. 6. Criminal liability can be imposed on companies etc. (legal persons) according to the rules in Chapter 5 of the Criminal Code. PCS. 7. Sections 18 and 19 of the Act on Collection of Taxes and Duties etc. apply correspondingly to cases of infringement of this Act. (ee) Tax Control Act The Tax Control Act contains provisions, which might only be applicable in national criminal proceedings if an accused shall have damaged the Danish Budget. 41 Danish Authorities Investigating PIF Acquis Offences 96 Denmark (ff) Penal Provisions of the Tobacco Tax Act Penal Provisions, which touch the obligation of Denmark to pay VAT sums to the EU budget can be found in the tobacco tax Act: Penal provisions Section 25 It is punished with a fine, which is intentional or grossly negligent 1) submits false or misleading information or falsifies information for use in the tax audit, 2) violates Section 2, Section 3, Section 4, Section 7, subsection 1, Section 9, subsection 2 or no. 5, 3rd pt., Section 10, subsection 1, 2nd point, subsection 2, 2nd point, or subsection 3, 2nd and 3rd pt., Section 10 a, subsection 4, subsection 5, 2nd point, or subsection 6, Section 11, subsection 1 or 2, Section 18, subsection 1–5 or 7–10, section 21, subsection 2, 3 or 4, Section 29, subsection 3, 2nd pt., or Section 30, subsection 1, 3) fails to comply with an order issued pursuant to section 15, 1st point, or disregards an order pursuant to section 18, subsection 7, notified terms, 4) transfers, acquires, appropriates or uses goods on which duty has not been paid, which should have been paid according to the law, or attempts to do so or 5) continues the operation of a taxable company whose authorisation or registration has been revoked pursuant to section 16 and the customs and tax administration has notified the company of this. PCS. 2. In regulations that are issued pursuant to the law, a penalty of fine can be established for anyone who intentionally or grossly negligently violates provisions in the regulations. PCS. 3. Anyone who commits one of the aforementioned offences with the intention of evading tax from the state treasury is punished by a fine or imprisonment of up to 1 year and 6 months, unless a higher penalty is owed under Section 289 of the Criminal Code. PCS. 4. Criminal liability can be imposed on companies etc. (legal persons) according to the rules in Chapter 5 of the Criminal Code. PCS. 5. When setting a fine for violation of Section 10, subsection 1, 2nd point, a stiffer fine is imposed. The same applies in case of violation of section 18, subsection 1–3, 5 and 7–9, if the violation means that it is not possible to ascertain whether tax has been paid in accordance with the provisions of this Act. PCS. 6. Has someone committed multiple violations of Section 10, subsection 1, 2. pt., or Section 18, subsection 1–3, 5 and 7–9, or regulations laid down pursuant thereto, and the violations lead to the imposition of a fine, the fine penalty for each violation is added together. Has anyone violated Section 10, subsection 1, 2. pt., or Section 18, subsection 1–3, 5 and 7–9. And tax laws or mortgage legislation. PCS. 7. The provision in subsection 6 can be waived when special reasons justify this. 42 Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 97 Section 25a In the case of gross or repeated violations covered by section 25, subsection 3, the goods to which the violation relates must be confiscated. However, confiscation can be waived if the amount of tax evaded for the violation in question does not exceed DKK 1,000. PCS. 2. If confiscation occurs, the tax liability for the confiscated goods ceases. Section 26 The rules in Sections 18 and 19 of the Act on Collection of Taxes and Duties etc. apply correspondingly to cases of infringement of this Act. (gg) Further PIF Acquis Offences Further PIF Acquis Offences can be found in the Act on structural measures relating to the fisheries sector: Act on structural measures relating to the fisheries sector Chapter 4 Penalty and entry into force provisions Section 18 Anyone who, for the purposes of decisions made pursuant to this Act or the rules laid down pursuant to the Act, provides incorrect or misleading information or conceals information of importance to the decision, is punished by a fine, unless a higher penalty is due under other legislation. The same applies to anyone who violates conditions laid down in such a decision. PCS. 2. Anyone who otherwise fails to provide information that the person concerned is obliged to provide in accordance with this Act or regulations laid down pursuant to the Act shall be punished by a fine, unless a higher penalty is due under other legislation. The same applies to anyone who provides false or misleading information about such matters. PCS. 3. In rules laid down pursuant to the law, a fine may be imposed for breach of provisions in the rules. PCS. 4. Criminal liability can be imposed on companies etc. (legal persons) according to the rules in Chapter 5 of the Criminal Code. PCS. 5. If it is deemed that an infringement will not result in a higher penalty than a fine, the Minister for the Environment and Food can state that the case can be settled without legal prosecution. It is a condition for this that the person who has committed the violation declares himself guilty of the violation and declares himself ready to pay a fine specified in the notification within a specified period, which can be extended upon request. PCS. 6. As far as the one in para. 5 mentioned notification, the provision on prosecution in Section 895 of the Administrative Procedure Act applies accordingly. 43 Danish Authorities Investigating PIF Acquis Offences 98 Denmark Act on certain rural district-related subsidy schemes etc. / Lov om visse landdistriktsrelaterede tilskudsordninger m.v. Chapter 5 Penal provisions Section 26 Unless a higher penalty is due under the other legislation, the person who 1) for the use of decisions made in accordance with the law or the rules laid down pursuant to the law, provides incorrect or misleading information or conceals information of importance for the decision, 2) acts in violation of the terms laid down in such a decision, 3)otherwise fails to provide information that the person in question is obliged to provide in accordance with the law or regulations laid down pursuant to the law, 4) provides false or misleading information about such matters, 5) fails to give the control authority access to the agricultural holding or company in accordance with section 20, subsection 2, 6) fails to hand over or submit material or to provide the supervisory authority with assistance pursuant to section 20, subsection 3. PCS. 2. In regulations that are issued pursuant to the law, a penalty of fine may be established for violation of provisions in the regulations or of conditions notified pursuant to the regulations. In addition, the rules may stipulate a penalty of a fine for violation of provisions in rules laid down by the European Community on matters covered by this law. PCS. 3. Criminal liability can be imposed on companies etc. (legal persons) according to the rules in Chapter 5 of the Criminal Code. Section 27If it is deemed that an infringement will not result in a higher penalty than a fine, the Minister for the Environment and Food can state that the case can be settled without legal prosecution. It is a condition for this that the person who has committed the violation declares himself guilty of the violation and declares himself ready to pay a fine specified in the notification within a specified period, which can be extended on request. PCS. 2. With regard to the one in para. 1, the provisions of the Administration of Justice Act on requirements for the content of an indictment and on the fact that an accused person is not obliged to make a statement apply correspondingly. PCS. 3. If the fine is paid in due time, or if it is recovered or served after the decision has been made, further prosecution ceases. dd. Examples and precedents There are distinct types of fraud against the EU budget. A basic distinction must be made between fraud on the revenue side and fraud on the expenditure side. This separation applies not only to investigations by the delegated public prosecutors, but also to OLAF 44 Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 99 investigators (see → Part E, Article 3 External investigations Fehler! Verweisquelle k onnte nicht gefunden werden.) and national authorities in administrative procedures (especially on the expenditure side, for example in the case of subsidies). The first EPPO crime report therefore correctly distinguishes between: - Non-procurement expenditure fraud - Procurement expenditure fraud - VAT revenue fraud - Non-VAT revenue fraud - corruption cases (4% in 2021). (1) Fraud (a) Revenue frauds Revenue frauds are manifold. First, the scheme should be identified. For this, it is worthwhile to compare the suspected behaviour with known behaviour patterns. From a legal as well as a police point of view, the overview of crime patterns is useful. Especially in Covid-times there has been an increase in characteristics. Assessment can also be based on known cases and the professional groups suspected in these cases. Denmark provides very rare figures on revenue frauds. Still newspapers report about customs and tax frauds. 55 The Danish Tax Authority provides a legal guide to VAT legislation and frauds. 56 (b) Expenditure frauds Case Study 1: Defrauding the EU with cinema tickets? 55 See DR, 7 December 1999, Customs fraud for DKK 75 million, https://www.dr.dk/nyheder/indland/toldsvindel75-mio. Accessed 31 December 2024. 56 See Skat. Dk, Om Den juridiske vejledning, The legal guidance, https://skat.dk/data.aspx?oid=1921150. Accessed 31 December 2024. 45 46  Defrauding the EU with cinema tickets? An example from the past (taken from a newspaper article), which concerned a subsidy fraud case can be presented here. It involved cinemas in Aarhus, Denmark in the early 2000s. The alleged accused paid back the money, which was potentially defrauded from the EU budget to the EU so that the case was ceased: “Kunstbiograf in Aarhus acknowledges fraud with EU support, but the money has been paid back and the cinema remains. The small art cinema “East of Paradise” in Aarhus admits to having defrauded hundreds of thousands of EU kroner, which are supposed to help cinemas keep alive the sales of tickets for narrow European films. Danish Authorities Investigating PIF Acquis Offences 100 Denmark (2) Corruption offences Corruption offences are a serious threat to the EU budget and corruption is not unknown to Denmark despite Denmark being a country, which sees very rare several of these offences. 58 (3) Money laundering with PIF crimes Generally speaking the public can report AML offences via a portal to the Danish Prosecution Service and Offices: https://anklagemyndigheden.dk/en/money-laundering. [email protected] <[email protected] 57 Ritzau 2011. 58 See Transparency International, https://transparency.dk/korruption/definition/. Accessed 31 December 2024. The cinema, which also rents out films to others, has already repaid 82,000 euros or 620,000 kroner to the EU. An unconditional prison sentence was planned, but the sentence will probably be considerably lower, according to a hearing in the district court in Aarhus on Thursday. Here, the former director of the cinema Ole Bjørn Christensen stands accused of fraud with EU support for small films. The defendant has admitted that he has inflated the number of tickets sold. And that made the Danish Film Institute raise eyebrows. The institute is responsible for the figures that Statistics Denmark submits to the EU system. From here, small films from EU countries and distributed to other EU countries can receive a subsidy of 0.45, 0.55 and 0.75 per cent per ticket. One of the problems in the Aarhus case is that the cinema has also received support for film screenings, where free tickets have been handed out in a big way. The charge against the cinema has been greatly reduced. Not least because the cinema has voluntarily paid the money back to the EU. Now the indictment only concerns the year 2005 and not, as previously, 2004 as well. The district court in Aarhus is expected to deliver a verdict later Thursday.”57 47 48 Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 101 2. Waiver of the Charges, Prevention of Prosecution, Urgent Measures in the Investigation Stage and the Finalisation of the National Investigation a) Provisions with a precluding effect for the Prosecution Offices ............... 101 aa. Statute of limitations for offences and custodial consequences (imprisonment, etc.) .................................... 101 bb. Amnesty and Pardon .. 105 cc. Opposing legal validity .................................... 105 dd. Abatement of action (Dispense with prosecution, Waiver of Charges) ........... 105 b) Urgent measures of national authorities for securing an investigation and prosecution ....................................... 109 a) Provisions with a precluding effect for the Prosecution Offices aa. Statute of limitations for offences and custodial consequences (imprisonment, etc.) Chapter 11 of the Criminal Procedure Code determines the termination of the proceedings. Chapter 11 Termination of the consequences of the offence Section 92 An offence shall not be punished when the statute of limitations pursuant to sections 93– 94 has occurred. Section 93 The limitation period is 1) 2 years when no penalty higher than imprisonment for 1 year is provided for the offence. 2) 5 years where no penalty higher than imprisonment for 4 years is provided. 3) 10 years where no penalty higher than imprisonment for 10 years is provided. 4) 15 years, where no penalty is higher than imprisonment for a fixed period. Para 2. The limitation period shall in no case be less than 5 years for (1) contravention of Sections 296(3), 297(2) and 302(2) of this Act; (2) violation of tax, customs, excise or subsidy legislation by which undue gain is or may be obtained. Para 3. Where someone has committed several offences in respect of which different limitation periods apply in accordance with paras 1 and 2, the longer of those periods shall apply in respect of all the infringements. 1 Danish Authorities Investigating PIF Acquis Offences 102 Denmark Section 93a When an offence is covered by an international agreement to which Denmark has acceded, according to which criminal liability is irreparable, limitation does not occur. Section 93b When an offence is covered by Section 157a of this Act, limitation shall not occur. Para 2. When an offence covered by Sections 210, 216–224, 225, cf. Sections 216–224, 226 or 227(1) is committed against a person under the age of 18, the limitation period shall not occur. Section 94 The limitation period shall begin to run on the day on which the criminal activity or omission ceases. Para 2. However, where the offence depends on or is affected by a consequence or other subsequent event, the period shall begin to run only from the occurrence of that consequence or event. Para 3. If the offence was committed on a Danish ship outside the Kingdom, the deadline is calculated from the day on which the ship arrived in Danish port. However, according to this provision, the starting point of the period may not be postponed for more than 1 year. Para 4. However, for infringements of sections 245a, 246, cf. sections 245a, 260(2) and 262a(2), in respect of a person under the age of 18 or of section 232 in respect of a child under the age of 15, the limitation period shall be calculated at the earliest from the day on which the injured party reaches the age of 21. The same applies to violations of sections 244, 245 and 246 in the form of termination of pregnancy, foetal reduction or sterilization without consent against a person under the age of 18. For an infringement of Sections 243, 244(2), 245 and 246, cf. Section 245, against a person under the age of 18, the limitation period shall not begin to run until the date on which the injured party reaches the age of 21 at the earliest, where at the time of the offence the offender belonged to or was closely connected with the victim’s household. However, if the offender, by violence, unlawful coercion under section 260 or otherwise by means of a criminal offence, has forced the injured party not to report the offence to the police, the limitation period shall be calculated at the earliest from the time when the coercion has ceased. Para 5. The limitation period shall be interrupted when the charge is brought to the attention of the person concerned or when the prosecution requests proceedings accusing him of the offence. The limitation period for a legal person’s liability may be interrupted against a person who may receive service on behalf of the legal person pursuant to Section 157a of the Code of Civil Procedure. Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 103 Para 6. If the prosecution is dropped without the decision to do so being reversed by the superior prosecutor within the ordinary period for reversal, the limitation period shall continue as if the prosecution had not taken place. This also applies when prosecution is stopped indefinitely. However, if the suspension is due to the fact that the accused has evaded prosecution, the duration of the prosecution shall not be taken into account in calculating the limitation period. Section 95 Nor shall an act be punishable by reason of limitation, nor shall it give rise to legal consequences under Sections 68 to 70, 74a, 164(5) or 236, confiscation or disqualification. However, for confiscation the limitation period is in no case less than 5 years and for confiscation under section 75(1) not less than 10 years. Section 96 The right to private prosecution and to apply for public reprimand shall cease if the person concerned has not instituted proceedings or made an application within 6 months of becoming aware of such knowledge that he has sufficient grounds for bringing legal proceedings or making an application for prosecution. Para 2. Where there are several persons entitled to prosecute or several guilty persons, the time limit shall be calculated separately for each of them. However, if the time limit for applying for public prosecution has expired for one of the guilty parties but not for the others, it depends on the decision of the public prosecutor whether an application for prosecution against them should be granted. Para 3. The right to bring private prosecution or apply for public reprimand lapses when 6 months have elapsed after the victim’s death. Para 4. If a private prosecution does not lead to a decision on the criminal claim, the time limit shall continue to run, excluding the time during which the prosecution has taken place. Para 5. The provisions of paras 1 to 4 shall also apply with regard to mortification under section 270, except that the limitation period shall be 3 years. Danish Authorities Investigating PIF Acquis Offences 110 Denmark II. Involvement of Danish authorities in the fight against EU-fraud: Police, Tax and Customs investigating on behalf of the Danish prosecution offices 1. The Danish Police and Prosecutor conducting investigative measures .............. 112 a) Instructions and assignment of investigative measures for national authorities ................ 117 b) Ensuring compliance with national law ........................... 119 c) Urgent measures in accordance with national law necessary to ensure effective investigations ........................ 121 2. Hindrances to effective EU fraud and corruption investigations in Danish national law .............. 125 a) National privilege and immunity provisions, para 1 ....................................... 125 aa. Legal (professional) privilege ............................ 125 bb. Privilege against selfincrimination ..................... 127 b) Immunity provisions ..... 128 aa. Parliamentary privilege or immunity ........................... 128 bb. National Legislation .. 129 cc. Provisions on the lifting of immunities? .................. 129 c) Immunities and Privileges under union law, para 2 ........ 130 The main question, which is the focus of this next section is: How do Danish authorities investigate EU fraud offences without the EPPO and what would change if Article 28 EPPO Regulation applied? Union law, which would apply if Denmark would be part of the EPPO: Art. 28 Conducting the investigation 1. The European Delegated Prosecutor handling a case may, in accordance with this Regulation and with national law, either undertake the investigation measures and other measures on his/her own or instruct the competent authorities in his/her Member State. Those authorities shall, in accordance with national law, ensure that all instructions are followed and undertake the measures assigned to them. The handling European Delegated Prosecutor shall report through the case management system to the competent European Prosecutor and to the Permanent Chamber any significant developments in the case, in accordance with the rules laid down in the internal rules of procedure of the EPPO. 2. At any time during the investigations conducted by the EPPO, the competent national authorities shall take urgent measures in accordance with national law necessary to ensure effective investigations even where not specifically acting under an instruction given by the handling European Delegated Prosecutor. The national authorities shall Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 111 without undue delay inform the handling European Delegated Prosecutor of the urgent measures they have taken. 3. The competent Permanent Chamber may, on proposal of the supervising European Prosecutor decide to reallocate a case to another European Delegated Prosecutor in the same Member State when the handling European Delegated Prosecutor: (a) cannot perform the investigation or prosecution; or (b) fails to follow the instructions of the competent Permanent Chamber or the European Prosecutor. 4. In exceptional cases, after having obtained the approval of the competent Permanent Chamber, the supervising European Prosecutor may take a reasoned decision to conduct the investigation personally, either by undertaking personally the investigation measures and other measures or by instructing the competent authorities in his/her Member State, where this appears to be indispensable in the interest of the efficiency to the investigation or prosecution by reasons of one or more of the following criteria: (a) the seriousness of the offence, in particular in view of its possible repercussions at Union level; (b) when the investigation concerns officials or other servants of the Union or members of the institutions of the Union; (c) in the event of failure of the reallocation mechanism provided for in paragraph 3. In such exceptional circumstances Member States shall ensure that the European Prosecutor is entitled to order or request investigative measures and other measures and that he/she has all the powers, responsibilities and obligations of a European Delegated Prosecutor in accordance with this Regulation and national law. The competent national authorities and the European Delegated Prosecutors concerned by the case shall be informed without undue delay of the decision taken under this paragraph. As part of the introduction to section in this manual, which is relevant to all prosecutors and EDPs of the EPPO investigating a case that concerns Denmark as a non-participating country and also affects the academic and political debate about specialized investigative personnel in Denmark, the following can be said: The conduct of investigations is dependent on instruction relationships, whereby the dependency in classically national systems, in the area of EU anti-fraud investigations is a problem of interference. The investigations on national level and at Union-level must be distinguished. Especially at the Union level, the investigation is different than at the national level. In many cases, investigations will be conducted in Union institutions (EU IBOAs). The EPPO has started to set up working arrangements for this type of investigation. Denmark is not the seat of any EU institution. The main locations of EU Institutions are in Luxemburg, Belgium, Germany, Poland, France, Italy, Czech Republic and Greece. 1 Danish Authorities Investigating PIF Acquis Offences 112 Denmark The EPPO has started to set up working arrangements with non-participating countries. At the moment of writing (01/2023) the EPPO has not concluded a Working Arrangement with Denmark. For the different PIF offences, the specific country system provides different investigative bodies acting by virtue of different national codes such as the General Tax Code, the police laws and the customs laws including the customs administration laws. It depends, for the analysis of Art. 28 EPPO Regulation, on whether a centrally governed country of the EU is affected or whether there is a federal system with differentiated competences of the federal units. In addition, the lawfulness of the action is particularly important as a generalisation of all instructions from the staff, which are made available to the EPPO and the EDPs from the national resource area. 1. The Danish Police and Prosecutor conducting investigative measures The rules on the Danish Prosecutor and its status are enshrined in Chapter 10 of the Danish Administration of Justice Act: Fourth section The prosecution Chapter 10 The prosecution Section 95 61 The public prosecutors are the attorney-general, the state prosecutors, the police directors and the persons who have been hired to assist them in the judicial processing of criminal cases. Section 96 62 The task of the public prosecutors is, in connection with the police, to prosecute crimes according to the rules of this Act. PCS. 2. The public prosecutors must advance every case with the speed that the nature of the case allows, thereby not only ensuring that the guilty are brought to justice, but also that the prosecution of the innocent does not take place. 61 Fjerde afsnit. Anklagemyndigheden Kapitel 10 Anklagemyndigheden § 95. De offentlige anklagere er rigsadvokaten, statsadvokaterne, politidirektørerne samt de personer, der er antaget til bistand for disse ved den retlige behandling af straffesager. 62 § 96. De offentlige anklageres opgave er i forbindelse med politiet at forfølge forbrydelser efter reglerne i denne lov. Stk. 2. De offentlige anklagere skal fremme enhver sag med den hurtighed, som sagens beskaffenhed tillader, og derved ikke blot påse, at strafskyldige drages til ansvar, men også at forfølgning af uskyldige ikke finder sted. 2 3 4 5 Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 113 Section 97 63 Anyone who, according to Chapter 2 of the Public Administration Act, may be considered incompetent in relation to a specific case, may not act as a prosecutor in the case. Section 98 64 The Minister of Justice is the superior of the public prosecutors and supervises them. PCS. 2. The Minister of Justice may lay down provisions on the public prosecutors’ performance of their duties. PCS. 3. The Minister of Justice can give the public prosecutors instructions regarding the handling of specific cases, including whether to start or continue, refrain from or stop prosecution. An order pursuant to this provision to begin or continue, refrain from or stop prosecution must be in writing and accompanied by a reason. Furthermore, the Speaker of the Danish Parliament must be notified in writing of the order. If the considerations mentioned in Section 729c, subsection 1, makes it necessary, notification can be postponed. The order is considered in relation to access to documents in accordance with Sections 729 a–d as material that the police have provided for use in the case. PCS. 4. The Minister of Justice processes complaints about decisions made by the Attorney General as the first instance, cf. however the provision in Section 1018 e, subsection 4. Section 99 65 The Attorney General handles criminal proceedings at the Supreme Court and acts at the Special Complaint. PCS. 2. The Attorney General is superior to the other public prosecutors and supervises them. The Attorney General can lay down provisions and issue orders according to rules corresponding to section 98, subsection 2 and par. 3, 1st point 63 § 97. Den, der efter kapitel 2 i forvaltningsloven må anses for inhabil i forhold til en bestemt sag, må ikke virke som anklager i sagen. 64 § 98. Justitsministeren er de offentlige anklagere overordnet og fører tilsyn med disse. Stk. 2. Justitsministeren kan fastsætte bestemmelser om de offentlige anklageres udførelse af deres opgaver. Stk. 3. Justitsministeren kan give de offentlige anklagere pålæg vedrørende behandlingen af konkrete sager, herunder om at begynde eller fortsætte, undlade eller standse forfølgning. Et pålæg i medfør af denne bestemmelse om at begynde eller fortsætte, undlade eller standse forfølgning skal være skriftligt og ledsaget af en begrundelse. Endvidere skal Folketingets formand skriftligt underrettes om pålægget. Hvis de hensyn, der er nævnt i § 729 c, stk. 1, gør det påkrævet, kan underretning udsættes. Pålægget betragtes i relation til aktindsigt i medfør af §§ 729 a–d som materiale, politiet har tilvejebragt til brug for sagen. Stk. 4. Justitsministeren behandler klager over afgørelser truffet af rigsadvokaten som 1. instans, jf. dog bestemmelsen i § 1018 e, stk. 4. 65 § 99. Rigsadvokaten varetager udførelsen af straffesager ved Højesteret og virker ved Den Særlige Klageret. Stk. 2. Rigsadvokaten er de øvrige offentlige anklagere overordnet og fører tilsyn med disse. Rigsadvokaten kan fastsætte bestemmelser og meddele pålæg efter regler svarende til § 98, stk. 2 og stk. 3, 1. pkt. Stk. 3. Rigsadvokaten behandler klager over afgørelser truffet af statsadvokaterne som 1. instans. Rigsadvokatens afgørelse i en klagesag kan ikke påklages til justitsministeren. Danish Authorities Investigating PIF Acquis Offences 114 Denmark PCS. 3. The Attorney General handles complaints about decisions made by the state attorneys as the first instance. The Attorney General’s decision in an appeal case cannot be appealed to the Minister of Justice. Section 100 66 One or more state attorneys are appointed by the Supreme Court to assist the attorney general. PCS. 2. The Attorney General can also authorise others to act as prosecutors at the Supreme Court or at the Special Appeal. Section 101 67 The state prosecutors handle the execution of criminal cases at the district courts. The Attorney General can decide that the state attorneys within a more closely defined case area for the time being also handle the execution of criminal cases at the district courts. PCS. 2. The public prosecutors oversee the police directors’ handling of criminal cases and handle complaints about decisions made by the police directors regarding criminal prosecution. The state prosecutors’ decisions in appeals cannot be appealed to the attorney general and the minister of justice. The public prosecutors can lay down provisions and issue orders according to rules corresponding to section 98, subsection 2 and par. 3, 1st point. Section 102 68 The deadline for complaints pursuant to Section 98, subsection 4, Section 99, subsection 3, 1st point, and Section 101, subsection 2, 1st point, is 4 weeks after the complainant has been notified of the decision. If the complaint is made after the expiry of this period, it must be dealt with if the exceeding of the period can be considered excusable. 66 § 100. Til bistand for rigsadvokaten udnævnes en eller flere statsadvokater ved Højesteret. Stk. 2. Rigsadvokaten kan bemyndige også andre til at virke som anklager ved Højesteret eller ved Den Særlige Klageret. 67 § 101. Statsadvokaterne varetager udførelsen af straffesager ved landsretterne. Rigsadvokaten kan bestemme, at statsadvokaterne inden for et nærmere afgrænset sagsområde indtil videre tillige varetager udførelsen af straffesager ved byretterne. Stk. 2. Statsadvokaterne fører tilsyn med politidirektørernes behandling af straffesager og behandler klager over afgørelser truffet af politidirektørerne vedrørende strafforfølgning. Statsadvokaternes afgørelser i klagesager kan ikke påklages til rigsadvokaten og justitsministeren. Statsadvokaterne kan fastsætte bestemmelser og meddele pålæg efter regler svarende til § 98, stk. 2 og stk. 3, 1. pkt. 68 § 102. Fristen for klager efter § 98, stk. 4, § 99, stk. 3, 1. pkt., og § 101, stk. 2, 1. pkt., er 4 uger efter, at klageren har fået meddelelse om afgørelsen. Fremkommer klagen efter udløbet af denne frist, skal den behandles, såfremt fristoverskridelsen må anses for undskyldelig. Stk. 2. Bestemmelserne i § 98, stk. 4, § 99, stk. 3, og § 101, stk. 2, finder tilsvarende anvendelse på klager over afgørelser om aktindsigt. Det samme gælder bestemmelsen i stk. 1. Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 115 PCS. 2. The provisions in section 98, subsection 4, Section 99, subsection 3, and section 101, subsection 2, applies correspondingly to complaints about decisions on access to documents. The same applies to the provision in subsection 1. Section 103 69 The Minister of Justice determines the number of state attorneys and the distribution of business between them. PCS. 2. The Attorney General appoints the necessary legal assistants for the state attorneys when conducting criminal cases before the High Court and the District Court, cf. section 101, subsection 1, and Section 104, subsection 1, 2. pt. PCS. 3. The Attorney General can also authorise others to act as prosecutors at the High Court in a single case. PCS. 4. The Attorney General may instruct a State Attorney to take over the processing of one or more cases that belong to another State Attorney. Section 104 70 The directors of police and the public prosecutors employed by them, as well as other employees who are authorised to do so, handle the execution of criminal cases at the city courts, cf. however Section 101, subsection 1, and Section 103, subsection 2. The public prosecutor may in special cases decide that the execution of a criminal case, which is heard at the district court with the assistance of jurors or with the assistance of judges as a result of the defendant’s decision pursuant to section 687, must be handled by the public prosecutor. PCS. 2. The Attorney General can also authorise others to act as prosecutors at the district court in a single case. PCS. 3. The public prosecutor can instruct a police director to take over the processing of one or more cases that belong to another police director. 69 § 103. Justitsministeren fastsætter antallet af statsadvokater og fordelingen af forretningerne mellem disse. Stk. 2. Rigsadvokaten beskikker de fornødne juridiske medhjælpere for statsadvokaterne ved udførelsen af straffesager for landsretten og ved byretten, jf. § 101, stk. 1, og § 104, stk. 1, 2. pkt. Stk. 3. Rigsadvokaten kan bemyndige også andre til at virke som anklager ved landsretten i en enkelt sag. Stk. 4. Rigsadvokaten kan pålægge en statsadvokat at overtage behandlingen af en eller flere sager, som henhører under en anden statsadvokat. 70 § 104. Politidirektørerne og de offentlige anklagere, der er ansat hos disse, samt andre ansatte, der bemyndiges hertil, varetager udførelsen af straffesager ved byretterne jf. dog § 101, stk. 1, og § 103, stk. 2. Statsadvokaten kan i særlige tilfælde bestemme, at udførelsen af en straffesag, der behandles ved byretten under medvirken af nævninger eller under medvirken af domsmænd som følge af tiltaltes beslutning efter § 687, skal varetages af statsadvokaten. Stk. 2. Rigsadvokaten kan bemyndige også andre til at virke som anklager ved byretten i en enkelt sag. Stk. 3. Statsadvokaten kan pålægge en politidirektør at overtage behandlingen af en eller flere sager, der henhører under en anden politidirektør. Danish Authorities Investigating PIF Acquis Offences 116 Denmark Section 105 71 The Attorney-General, the state attorneys and the persons who are hired to assist them or a director of police in the judicial processing of criminal cases, must have passed the legal master’s examination. The Attorney General and State Attorneys must as a rule meet the conditions for being appointed as a lawyer with regard to prior practical activity, cf. Section 119. PCS. 2. Assistants for a public prosecutor and those who are authorised to act as prosecutors at the Supreme Court, the High Court or the District Court in accordance with the rules in section 100, subsection 2, Section 103, subsection 3, or Section 104, subsection 2, must meet the conditions in subsection 1. PCS. 3. The Attorney General can appoint the Consumer Ombudsman and employees of the Danish Competition and Consumer Authority to oversee the execution of criminal proceedings before the district court and the high court in cases relating to the Act on Marketing. PCS. 4. The Attorney General may appoint employees of the Competition and Consumer Agency to handle criminal proceedings before the district courts in cases relating to the Competition Act. Section 106 72 Activity as a lawyer does not exclude from acceptance as an assistant to a public prosecutor or from authorisation to act as a prosecutor in a single case. Section 107 73 Persons who act as prosecutors in a single case, cf. Section 100, subsection 2, Section 103, subsection 3, and section 104, subsection 2, receives remuneration from the public sector for the individual case, unless the execution of the case can be regarded as part of the performance of the person concerned service. 71 § 105. Rigsadvokaten, statsadvokaterne og de personer, der er antaget til bistand for disse eller for en politidirektør ved den retlige behandling af straffesager, skal have bestået juridisk kandidateksamen. Rigsadvokaten og statsadvokaterne skal i reglen opfylde betingelserne for at blive beskikket som advokat med hensyn til forudgående praktisk virksomhed, jf. § 119. Stk. 2. Medhjælpere for en statsadvokat og de, der bemyndiges til at virke som anklager ved Højesteret, landsretten eller byretten efter reglerne i § 100, stk. 2, § 103, stk. 3, eller § 104, stk. 2, skal opfylde betingelserne i stk. 1. Stk. 3. Rigsadvokaten kan beskikke Forbrugerombudsmanden og ansatte i Konkurrenceog Forbrugerstyrelsen til at varetage udførelsen af straffesager for byretten og landsretten i sager vedrørende lov om markedsføring. Stk. 4. Rigsadvokaten kan beskikke ansatte i Konkurrenceog Forbrugerstyrelsen til at varetage udførelsen af straffesager for byretterne i sager vedrørende konkurrenceloven. 72 § 106. Virksomhed som advokat udelukker ikke fra antagelse som medhjælper for en statsadvokat eller fra bemyndigelse til at optræde som anklager i en enkelt sag. 73 § 107. Personer, der virker som anklagere i en enkelt sag, jf. § 100, stk. 2, § 103, stk. 3, og § 104, stk. 2, modtager vederlag af det offentlige for den enkelte sag, medmindre udførelsen af sagen må anses som led i udførelsen af den pågældendes tjeneste. Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 117 The main aim of Danish Police is it to conduct, prior to the prosecutor, parallel or instructed investigations and to discover a conduct, which could be or is assessed as criminal relevant conduct. Afterwards the aim is pursued by carrying out the investigation measures, but first the instructions and the assignment of those tasks must be done to secure e.g. evidence and find a suspect. a) Instructions and assignment of investigative measures for national authorities The Danish system of cooperation between police & customs & financial authorities and prosecutors as well as the enshrinement of urgent measures in order ensure an effective investigation of e.g. a fraud offence can be detected by reading the following Chapters of the Code of Judicial Procedure, which includes a section that other states call simply the Criminal Procedure Code: Legal basis: - Chapter 11, Code of Judicial Procedure - Chapter 68, s. 745d - Chapter 69, Code of Judicial Procedure - s. 755 The police may arrest a person who is reasonably suspected of a criminal offence subject to public prosecution, if arrest may be deemed necessary to prevent further criminal offence, to ensure his provisional presence or to prevent his association with others. [...] - Chapter 72, 73 (Body intervention, search etc.) List 1: Instructed and assigned National authorities (list) 6 Instructed and assigned National authorities (list): Support: - Danish Police (Dansk Politi) - Danish Tax and Customs Authorities (SKAT) - Danish Public Prosecution Service Danish Authorities Investigating PIF Acquis Offences 118 Denmark Police Investigation Authorities 1  Police Act Chapter 2 Police tasks Section 2 The police have a task 1) to prevent criminal offences, disturbance of public peace and order as well as danger to the safety of individuals and the public, 2) to avert danger of disturbance of public peace and order as well as danger to individual and public safety, 3) to bring criminal activities to an end as well as to investigate and prosecute criminal matters, 4) to provide citizens with assistance in other dangerous situations, 5) to carry out control and supervisory tasks in accordance with applicable law, 6) to provide assistance to other authorities under applicable law and 7) to carry out other tasks that follow from applicable law or otherwise have a natural connection to the police’s activities. Further rules on the role of the police are stipulated by the Danish Administration of Justice Act, see Chapter 11, Sections 108 et seq. Administration of Justice Act / Retsplejeloven Section 71974 Public prosecution shall be the responsibility of the Commissioner of Police, unless otherwise provided by this Act or rules laid down pursuant to this Act. Paragraph 2. The Public Prosecutor prosecutes appeal cases in the High Court. Paragraph 3. The Minister of Justice or the person authorised by the Minister of Justice to do so shall otherwise lay down further rules on the distribution of prosecution between the Director of Public Prosecutions, the State Prosecutors and the Chief Constables. Section 742 Reports75 of criminal offences are submitted to the police. 74 § 719. Offentlig påtale tilkommer politidirektøren, medmindre andet følger af denne lov eller regler fastsat i medfør af denne lov. Stk. 2. Statsadvokaten påtaler ankesager ved landsret. Stk. 3. Justitsministeren eller den, som justitsministeren bemyndiger dertil, fastsætter i øvrigt nærmere regler om påtalens fordeling mellem rigsadvokaten, statsadvokaterne og politidirektørerne. 75 Kapitel 67 Almindelige bestemmelser om efterforskning § 742. Anmeldelser om strafbare forhold indgives til politiet. Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 119 Paragraph 2. The police, following a report or on their own initiative, initiate an investigation when there is a reasonable suspicion that a criminal offence pursued by the public authorities has been committed. b) Ensuring compliance with national law The compliance with national law is ensured by various decrees of the Minister of Justice and via the following general investigation provisions: Administration of Justice Act Section 719 76 Public prosecution shall be the responsibility of the Commissioner of Police, unless otherwise provided by this Act or rules laid down pursuant to this Act. Subclause 2. The Public Prosecutor prosecutes appeal cases in the High Court. Subclause 3. The Minister of Justice or the person authorised by the Minister of Justice to do so shall otherwise lay down further rules on the distribution of prosecution between the Director of Public Prosecutions, the State Prosecutors and the Chief Constables. Section 720 77 The Minister of Justice may stipulate that public prosecution in specified cases is conditional on the decision of the Minister of Justice or the Director of Public Prosecutions. Subclause 2. If public prosecution under the legislation is conditional on an application, prosecution may only take place if an application is made by a person entitled under section 725. A notification from the person entitled shall be deemed to be a request for Stk. 2. Politiet iværksætter efter anmeldelse eller af egen drift efterforskning, når der er rimelig formodning om, at et strafbart forhold, som forfølges af det offentlige, er begået. 76 § 719. Offentlig påtale tilkommer politidirektøren, medmindre andet følger af denne lov eller regler fastsat i medfør af denne lov. Stk. 2. Statsadvokaten påtaler ankesager ved landsret. Stk. 3. Justitsministeren eller den, som justitsministeren bemyndiger dertil, fastsætter i øvrigt nærmere regler om påtalens fordeling mellem rigsadvokaten, statsadvokaterne og politidirektørerne. 77 § 720. Justitsministeren kan fastsætte, at offentlig påtale i nærmere angivne sager er betinget af justitsministerens eller rigsadvokatens beslutning. Stk. 2. Hvis offentlig påtale efter lovgivningen er betinget af en begæring, kan påtale kun ske, såfremt begæring herom fremsættes af en efter § 725 berettiget. En anmeldelse fra den berettigede anses som en begæring om offentlig påtale, medmindre andet fremgår af anmeldelsen. Er privat påtale begyndt, kan offentlig påtale ikke begæres. Påtalemyndigheden kan nægte at efterkomme en begæring om offentlig påtale, der udelukker nogen medskyldig fra forfølgningen. Angår begæringen kun nogle af de skyldige uden at udelukke mulige medskyldige, kan påtalemyndigheden udstrække forfølgningen til disse, medmindre den berettigede efter at have haft lejlighed til at udtale sig herom modsætter sig dette. I så fald finder 4. pkt. anvendelse. Stk. 3. Statsadvokaten og politidirektøren kan uanset bestemmelserne i stk. 1 og 2 foretage uopsættelige handlinger, når forholdet må antages at være den, der kan beslutte eller begære påtale, ubekendt og omstændighederne gør det antageligt, at påtale vil blive besluttet eller begæret. Tilbagekaldes en begæring efter stk. 2, inden der er afsagt dom, standses forfølgningen, medmindre påtalemyndigheden skønner, at almene hensyn kræver, at forfølgningen fortsættes. 7 Danish Authorities Investigating PIF Acquis Offences 126 Denmark - The Bar Ethics Rules 1 September 2022 (De Advokatetiske Regler 1 September 2022) - DLA Piper has stated that “according to the Code of Conduct for Danish lawyers, the concept of confidentiality is founded in the rule of law.” 80 - The new rules on the ethics of lawyers in Denmark contain further rules: Chapter 5 Confidentiality Article 15 Confidentiality is a condition for the lawyer’s work and a fundamental duty and right, which must be respected not only in the interest of the individual, but also in the interest of the legal community. Article 16 The duty of confidentiality applies without time limit and also applies after the case for the client is terminated. PCS. 2. The duty of confidentiality applies to all information that the lawyer has received during his work for the client. However, a defence counsel can speak to the press in general terms about the progress of the criminal case and similar issues. PCS. 3. The duty of confidentiality applies regardless of which case the lawyer handles for the client. Article 17 A lawyer may share confidential information with lawyers and others employed PCS. 2. The duty of confidentiality applies to all information that the lawyer has received during his work for the client. However, a defence counsel can speak to the press in general terms about the progress of the criminal case and similar issues. Article 18 The duty of confidentiality does not prevent the lawyer from passing on information in the following cases: 1) The client has, on an informed basis, given consent for specific information to be passed on, unless otherwise stipulated in the legislation or in an order according to the legislation. 2) The lawyer is legally obliged to pass on the information. 80 See DLA Piper, https://www.dlapiperintelligence.com/legalprivilege/insight/?c=dk. Accessed 31 December 2024. Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 127 3) Dissemination takes place in legitimate pursuit of obvious public interest or of one’s own or that of other’s needs. Article 19 The lawyer must ensure that the lawyer’s authorised representatives, partners, cf. section 124 c, subsection of the Administrative Procedure Act. 1, no. 2, staff and others who are otherwise employed by the law firm are made aware that those concerned have the same duty of confidentiality as the lawyer, regardless of whether they are lawyers or not. Article 20 When lawyers practice law in a community, in a law firm, cf. section 124 of the Administrative Procedure Act, or in a partnership, the rules in Articles 15–19 apply to the partnership, the law firm and the partnership and in the mutual relationship between its participants, including employed lawyers. PCS. 2. Correspondingly, the rules in Articles 15–19 apply to other collaborations, cooperatives and partnerships between lawyers or law firms, if they appear in relation to third parties as a partnership or law firm. bb. Privilege against self-incrimination In Danish criminal law, the prohibition nemo tenetur se ipsum accusare is enshrined in Section 752 of the Judicial Procedure Act for the accused. 81 Thus, the provision is included next to the general provisions on investigations in Denmark. Chapter 68 Interrogations and special investigative steps Section 750 The police can conduct interrogations, but cannot compel anyone to give a statement, and no coercion may be used to get someone to make a statement. However, everyone is obliged to give their name, address and date of birth to the police upon request. Failure to do so is punishable by a fine. Section 751 The essential content of the explanations given is added to the reports, and particularly important parts of the explanations are reproduced as far as possible in the interrogated person’s own words. PCS. 2. The interrogated must be given the opportunity to become familiar with the reproduction of the explanation. Any corrections and additions that were questioned are included. The person questioned is informed that he is not obliged to sign the report. 81 See Langsted 1998. Further see Feldtmann 2019. 11 Danish Authorities Investigating PIF Acquis Offences 128 Denmark PCS. 3. Phonetic recording of explanations may only take place when the person questioned has been made aware of this. Section 752 82 Before the police interrogate an accused person, he must be expressly informed of the charge and that he is not obliged to make a statement. It must appear from the report that these rules have been observed. PCS. 2. The Minister of Justice lays down rules in which cases the municipal council must be notified of and have access to witness the questioning of accused persons under the age of 18. For suspected persons under the age of 15, the provision in section 821 d applies. PCS. 3. Questions to an accused may not be asked in such a way that something that has been denied or not acknowledged is assumed to be confessed. Promises, false pretences or threats must not be used. PCS. 4. The questioning must not be extended solely to obtain a confession. In the case of interrogations that are not quite short, the times for the beginning and end of the interrogation are stated in the report. PCS. 5. The accused may not consult with his defence counsel or others regarding the immediate answer to a question. b) Immunity provisions aa. Parliamentary privilege or immunity First of all, it should be remembered that Members of Parliament have absolute freedom of speech in their parliament as this is granted for its members. This situation in most Member States is comparable. This constitutional mechanism keeps the instruments of checks and balances in place. 83 Although, it might be unjust for the private individual, 82 § 752. Inden politiet afhører en sigtet, skal han udtrykkeligt gøres bekendt med sigtelsen og med, at han ikke er forpligtet til at udtale sig. Det skal af rapporten fremgå, at disse regler er iagttaget. Stk. 2. Justitsministeren fastsætter regler om, i hvilke tilfælde kommunalbestyrelsen skal underrettes om og have adgang til at overvære afhøringen af sigtede under 18 år. For mistænkte personer under 15 år gælder bestemmelsen i § 821 d. Stk. 3. Spørgsmål til en sigtet må ikke stilles således, at noget, der er benægtet eller ikke erkendt, forudsættes tilstået. Løfter, urigtige foregivender eller trusler må ikke anvendes. Stk. 4. Afhøringen må ikke forlænges alene for at opnå en tilståelse. Ved afhøringer, der ikke er ganske kortvarige, anføres i rapporten tidspunkterne for afhøringens begyndelse og afslutning. Stk. 5. Sigtede må ikke rådføre sig med sin forsvarer eller andre angående den umiddelbare besvarelse af et stillet spørgsmål. 83 Callewaert 2021 questions whether the EPPO is tied to ECtHR case-law, if it would, it could apply in cases regarding Art. 29. Already in 2017 Negri tried to find best practices for the EPPO. Nowadays some are already established, but still a profound EPPO related jurisprudence is missing – despite the recent cases of the ECJ. Staffler 2024 on procedural safeguards that are equally protected in nearly all democratic constitutions, see mn. 50 et seq. 12 Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 129 it also guarantees a level of transparency. The telos and ratio legis are to ensure that they also enjoy freedom from arrest for any civil debt and can operate their political activity (without the fear of fumus persecutionis 84 “that is, where proceedings are brought by a political adversary or appear to be motivated primarily by the desire to harm the MEP” 85 ). The Danish Parliament explains that “A member of the Folketing cannot be tried in a criminal case or imprisoned without the consent of the Folketing, unless the member is caught in the act.” The reasoning behind this immunity is equal to reasonings in other Member States: “The provision on immunity has been introduced to protect members of the Danish Parliament against arbitrary persecution by the government. When you are no longer a member of the Folketing, you can be prosecuted for things that happened while you sat in the Folketing. Members of Parliament can be awarded smaller fines, e.g. for speeding, without the consent of the Danish Parliament, but only if the person in question voluntarily pays the fine. The constitution also gives the members of the Parliament an extended form of freedom of speech when they speak in the Parliament.” 86 It is not clear if this immunity extends to other offences, but it can be doubted from the reasoning. bb. National Legislation Section 8 of the Ministerial Accountability Act binds the expiration of the criminal liability to ss. 93–95 of the Civil Penal Code: Ministerial Accountability Act Section 8 87 Ministers’ criminal liability expires according to Sections 93–95 of the Civil Penal Code. However, the limitation period is in no case less than 5 years. cc. Provisions on the lifting of immunities? There can e.g. defamation proceedings are not brought against the members for something they have said in the Folketing, unless the Folketing gives permission for it. For further information see the “Handbook on parliamentary work”. 84 See Stöger 2015, p. 147. This concept is known in the Member states, see Iovene and Recchia 2017, p. 162. 85 For this definition see Bradely 2018, Chapter 14, III. Part E. 86 See https://www.ft.dk/da/leksikon/Immunitet. Accessed 31 December 2024. 87 § 8. Ministres strafansvar forældes efter borgerlig straffelovs §§ 93–95. Forældelsesfristen er dog i intet tilfælde mindre end 5 år. 13 14 15 16 17 Danish Authorities Investigating PIF Acquis Offences 130 Denmark c) Immunities and Privileges under union law, para 2 Cf. → Article 29 EPPO Regulation and the subsequent analysis. Union law differs from national law and is not researched here in-depth. Union law contains a protocol, which will apply if the immunity or a privilege of a Union official needs to be lifted. It is enshrined in the consolidated version of the Treaty on the Functioning of the European Union Protocol (No 7) on the privileges and immunities of the European Union (OJ C 326, 26.10.2012, p. 266–272)”. 18 Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 131 III. Collection of Danish Investigation Measures Equivalent to Art. 30 EPPO Measures 1. The core investigation measures for financial fraud and corruption in Denmark (Equivalence to Article 30 EPPO Regulation) ............................... 131 a) Investigation measures .. 132 aa. Search Measures ........ 132 (1) Search any premises or land ................................ 132 (2) Search any means of transport ......................... 133 (3) Search any private home .............................. 133 (4) Search any clothes and any other personal property ................................ 133 (5) Search any computer system ............................ 133 bb. Obtainment of the production of any relevant object or document either in its original form or in some other specified form .......... 134 cc. Obtainment of the production of stored computer data, encrypted or decrypted ................................... 136 dd. Obtainment of banking account data and traffic data ................................... 139 ee. Freezing instrumentalities or proceeds of crime, including assets ................. 143 ff. Interception of electronic communications to and from the suspect or accused person ................................... 145 gg. Tracking & Tracing an Object ................................ 146 hh. Other investigative Steps ................................... 146 b) Specific restrictions in national law that apply with regard to certain categories of persons or professionals with an LLP obligation ...................... 149 2. Summary ........................... 149 1. The core investigation measures for financial fraud and corruption in Denmark (Equivalence to Article 30 EPPO Regulation) Next, it is important to explore the core investigation measures for financial fraud and corruption in Denmark (Equivalence to Article 30 EPPO Regulation). These measures offer many possibilities to discover EU frauds and include intrusive and effective means of investigative tools. Conducting the investigations, it is important to closely obey the law and follow the details. But what kind of measures apply in Denmark, which has the status of a non-participating country and is therefore not bound by the legal force of Art. 30 EPPO Regulation. The next section portrays the legal landscape of provisions that can be used by the Danish Prosecution to uncover the so-called PIF-Acquis offences, which were presented above (see → I.1.cc(2) Conditions of Criminality). 1 Danish Authorities Investigating PIF Acquis Offences 132 Denmark a) Investigation measures aa. Search Measures The overview box summarises the findings in relation to search measures and their application under the Danish Judicial Code: DK*opted out of AFSJ=Chapter 73 Retsplejeloven: s. 793 “Dwellings and other housing, documents, papers and the like, as well as the contents of locked objects and 2) other objects as well as locations outside housing spaces.” Authorisations by competent body: s. 794 and s. 796 para 2, 4 and 5 Retsplejeloven: “A decision on a search in other cases is made by a court order, cf. 5 and 6. The ruling states the specific circumstances of the case, on which it is based that the conditions for the intervention have been met. The ruling can be reversed at any time. [… 4, 5:] Before the court makes a decision pursuant to subs. 3, […]” The Danish Judicial Code provides for search measures in Chapter 73. Section 793 and 794 are the most important provisions to determine the scope of this measures. (1) Search any premises or land The Danish Police can conduct searches on domestic premises, which is allowed by s. 793 para 1, first and second variant: Chapter 73 Search Section 793 88 According to the rules in this chapter, the police may search 1) dwellings and other domestic premises, documents, papers and the like as well as the contents of locked objects and 2) other objects and locations outside the house. PCS. 2. Investigations of locations or objects which are freely accessible to the police are not covered by the rules in this chapter. PCS. 3. A search to search for a suspect who must be arrested, or a person who must be apprehended with a view to the execution of a criminal sentence or the commutation 88 § 793. Politiet kan efter reglerne i dette kapitel foretage ransagning af 1) boliger og andre husrum, dokumenter, papirer og lignende samt indholdet af aflåste genstande og 2) andre genstande samt lokaliteter uden for husrum. Stk. 2. Undersøgelser af lokaliteter eller genstande, som er frit tilgængelige for politiet, er ikke omfattet af reglerne i dette kapitel. Stk. 3. Ransagning for at eftersøge en mistænkt, der skal anholdes, eller en person, der skal pågribes med henblik på fuldbyrdelse af en straffedom eller forvandlingsstraffen for bøde, kan tillige finde sted efter §§ 759 og 761. Om undersøgelse af en persons legeme og visitation af det tøj, som den pågældende er iført, gælder reglerne i kapitel 72. Om undersøgelse af breve, telegrammer og lignende under forsendelse gælder reglerne i kapitel 71. 2 3 4 Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 133 penalty for a fine, can also take place in accordance with Sections 759 and 761. On examination of a person’s body and inspection of the clothes the person in question is wearing, the rules in chapter 72 apply. The rules in chapter 71 apply to the examination of letters, telegrams and the like in transit. (2) Search any means of transport Section 793 para 2 speaks of “locked objects”. If interpreting this from an objective point-of view and with a lay perspective according to the colloquial language this would also encompass means of transport as they are either locked if the rest or they might even be locked while they are in motion (a train e.g.). (3) Search any private home To search a private home is possible under s. 793 para 1 first variant, which speaks of dwellings. According to the Oxford Dictionary “dwelling” is a noun that means a house or apartment, thus a private home. (4) Search any clothes and any other personal property Section 793 does refer to “the content of locked objects”, which could relate to cabinets and cupboards and cloth worn but normally Art. 30 EPPO Regulation, which is analysed here in a hypothetical manner, wants to express the search of a person on the street. Art. 793 para 3 clearly expresses that “On examination of a person’s body and inspection of the clothes the person in question is wearing, the rules in chapter 72 apply.” The rules on the so-called body intervention have the following wording: Body intervention Section 792 As part of the investigation, according to the rules in this chapter, physical intervention may be carried out against the accused and others by 1) inspection of the body’s exterior, taking photographs, prints and the like of the body’s exterior as well as inspection of the clothing the person in question is wearing (body inspection), and 2) closer examination of the body, including its cavities, taking saliva or blood samples or other similar samples, X-ray examination and the like (body examination). PCS. 2. Physical intervention against arrested persons can also be carried out in accordance with section 758, subsection (5) Search any computer system Section 793 does not refer to digital systems or any other digital items. A search of a computer or a physical object in a dwelling or on a premise may be done by the police 5 6 7 8 9 Danish Authorities Investigating PIF Acquis Offences 134 Denmark authorities. But not the search of a computer system, its internal information and digital pieces. Section 791b regulates on the interception of a digital information system, which would be a “computer search”. bb. Obtainment of the production of any relevant object or document either in its original form or in some other specified form The obtainment of the production of any relevant object or document either in its original form or in some other specified form relates to the rules on seizure of objects relating to the offence. They are important as they may constitute evidence in a trial. The overview box once again summarises the relevant sections, which are then explored below: DK*=Chapter 74 ss. 801, 802, 802 para 3 (all of the suspect’s property) 803, 803a (an association’s assets), 807 (formalities during a seizure operation), 807a (seizure by everyone), 807b–807f (special rules on seizure e.g. in AML cases) Retsplejeloven; Authorisations by competent body: s. 802, s. 802 para 3 can only be ordered if s. 806 para 6 is obeyed: “[seizure] can only take place after a court order.” * Opted out of AFJS. Chapter 74 Seizure and edition Section 801 According to the rules in this chapter, seizure can be made 1) to secure evidence, 2) to secure the public’s claims for legal costs, confiscation and fines, 3) to secure the aggrieved party’s claim for restitution or compensation, 4) when the defendant has evaded further prosecution of the case, and 5) to secure claims that are being recovered by the arrears recovery authority. PCS. 2. Items which the police takes into custody, which no one has or acknowledges they have access to, and over which no one asserts a right, are not covered by the rules in this chapter. PCS. 3. The rules in chapter 71 apply to the handing over of letters, telegrams and the like in transit as well as to information about connections between telephones, etc. The provisions in section 758, subsection 75, also apply to confiscation of objects and money in connection with arrest. 1. 10 11 Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 135 Section 802 Objects that a suspect has at his disposal may be seized if 1) the person in question is reasonably suspected of an offence subject to public prosecution, and 2) there is reason to assume that the object can serve as evidence or should be confiscated, cf. however subsection 2, or the offence has been abandoned by someone who can claim it back. PCS. 2. Property of which a suspected owner may be seized if 1) the person in question is reasonably suspected of an offence subject to public prosecution, and 2) seizure is considered necessary to secure a) the public’s claim for legal costs, claim for confiscation pursuant to section 75, subsection of the Criminal Code. 1, 1st point, 2nd point, and 2nd point, and subsection 3, Section 76 a, subsection 5, and Section 77 a, 2nd point, fine claim or the aggrieved party’s claim for compensation in the case or b) claims that are being recovered by the arrears recovery authority, regardless of whether the debt is related to the case to which the suspicion relates. PCS. 3. Confiscation of all or part of a suspect’s property, including property that the suspect may later acquire, may be carried out if 1) charges have been brought for an offence which, according to the law, can lead to imprisonment for 1 year and 6 months or more, and 2) the defendant has evaded further prosecution in the case. PCS. 4. Written communications or the like originating from a person who, according to the rules in section 170, is excluded from giving evidence as a witness in the case, cannot be seized from a suspect. The same applies to material originating from a person covered by section 172, when the material contains information which the person concerned is exempted from giving evidence as a witness in the case according to section 172. Section 803 Objects that a person who is not a suspect has at their disposal can be seized as part of the investigation of an offence that is subject to public prosecution, if there is reason to assume that the object can serve as evidence, should is confiscated or, as a result of the offence, has been turned away from someone who can claim it back. Other property, including money in the possession of a person who is not a suspect, may be seized as part of the investigation of an indictable offence if there is reason to believe that such property should be confiscated. Section 189 applies accordingly. Danish Authorities Investigating PIF Acquis Offences 142 Denmark information and, as far as possible, the detailed information determined pursuant to subsection 5. Paragraph 3. The information provided pursuant to subsection 1, is submitted in writing or electronically using a declaration form. Paragraph 4. Is the obligation to indicate accompanied liquid assets according to subsection 1 is not fulfilled, the customs and tax administration prepares on its own initiative a written or electronic statement which, as far as possible, contains the required information determined pursuant to subsection 5. Paragraph 5. The Minister of Taxation may lay down provisions for the design and content of the 3 mentioned form. Section 10d 94 If unaccompanied liquid funds corresponding to the value of 10,000 euros or more pass into or out of the Danish customs territory from or to other parts of the EU’s customs territory, the customs and tax administration may demand that the sender or recipient of the unaccompanied liquid funds or a representative of one of these makes a notification to the customs and tax administration within a period of 30 days. Paragraph 2. The customs and tax administration may withhold the unaccompanied cash until the sender, recipient or a representative of one of these makes a notification, cf. subsection 1. Paragraph 3. If the customs and tax administration finds that unaccompanied liquid funds below the value referred to in subsection 1, passes into or out of the Danish customs territory from or to other parts of the EU’s customs territory, and that there are indications that the unaccompanied liquid funds are connected to criminal acts, the customs and tax administration registers this information and, as far as possible, the detailed information determined pursuant to subsection 6. 94 § 10d. Passerer uledsagede likvide midler, der svarer til værdien af 10.000 euro eller derover, ind i eller ud af det danske toldområde fra eller til øvrige dele af EU’s toldområde, kan toldog skatteforvaltningen kræve, at afsenderen eller modtageren af de uledsagede likvide midler eller en repræsentant for en af disse foretager en indberetningsangivelse til toldog skatteforvaltningen inden for en frist på 30 dage. Stk. 2. Toldog skatteforvaltningen kan tilbageholde de uledsagede likvide midler, indtil afsenderen, modtageren eller en repræsentant for en af disse foretager en indberetningsangivelse, jf. stk. 1. Stk. 3. Konstaterer toldog skatteforvaltningen, at uledsagede likvide midler under den værdi, der er omhandlet i stk. 1, passerer ind i eller ud af det danske toldområde fra eller til øvrige dele af EU’s toldområde, og at der er indikationer på, at de uledsagede likvide midler har forbindelse til kriminelle handlinger, registrerer toldog skatteforvaltningen denne oplysning og så vidt muligt de nærmere oplysninger, der er fastlagt efter stk. 6. Stk. 4. De oplysninger, der indberettes i medfør af stk. 1, indgives skriftligt eller elektronisk under anvendelse af en indberetningsblanket. Stk. 5. Er forpligtelsen til at indberette uledsagede likvide midler efter stk. 1 ikke er opfyldt, udarbejder toldog skatteforvaltningen på eget initiativ en skriftlig eller elektronisk angivelse, som så vidt muligt indeholder de påkrævede oplysninger, der er fastlagt efter stk. 6. Stk. 6. Skatteministeren kan fastsætte bestemmelser for udformning og indhold af den i stk. 4 nævnte blanket. Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 143 Paragraph 4. The information that is reported pursuant to subsection 1, is submitted in writing or electronically using a reporting form. Paragraph 5. Is the obligation to report unaccompanied cash according to subsection 1 is not fulfilled, the customs and tax administration, on its own initiative, prepares a written or electronic statement which, as far as possible, contains the required information determined pursuant to subsection 6. Paragraph 6. The Minister of Taxation may lay down provisions for the design and content of the 4 mentioned form. Section 10e 95 The Minister of Taxation may lay down further provisions on the storage of the information collected pursuant to Sections 10 c and 10 d and on the passing on of this information to the State Attorney for Special Economic and International Crime. ee. Freezing instrumentalities or proceeds of crime, including assets In the area of freezing instrumentalities or proceeds of crime, including assets Law on the Prevention of Measures against Money Laundering and Terrorist Financing (Money Laundering Law) applies. The Criminal Code contains the main provisions on freezing: Section 75 The proceeds of a criminal offence or an equivalent amount may be confiscated in whole or in part. If the necessary basis for determining the size of the amount is missing, an amount estimated to correspond to the obtained dividend can be confiscated. PCS. 2. If it can be considered necessary to prevent further offences, or special circumstances otherwise speak for it, confiscation of 1) items that have been used or intended to be used in a criminal offence, 2) objects produced by a criminal offence, and 3) objects in respect of which a criminal offence has otherwise been committed. PCS. 3. Instead of confiscation of those in subsection 2 items mentioned may be confiscated in an amount corresponding to their value or a part thereof. PCS. 4. Instead of confiscation according to subsection 2, provisions can be made on measures relating to the objects for the prevention of further offences. PCS. 5. When an association is dissolved by judgment, its assets and other assets may be confiscated. 95 § 10e. Skatteministeren kan fastsætte nærmere bestemmelser om opbevaring af de i medfør af §§ 10 c og 10 d indsamlede oplysninger og om videregivelse af disse oplysninger til Statsadvokaten for Særlig Økonomisk og International Kriminalitet. 15 16 Danish Authorities Investigating PIF Acquis Offences 144 Denmark Section 76 Confiscation pursuant to Section 75 subsection 1, can happen to the person to whom the proceeds accrued immediately from the criminal act. PCS. 2. Confiscation of those in section 75, subsection 2 and 3, said objects and valuables may be taken from the person who is responsible for the offence and from the person on whose behalf he has acted. PCS. 3. Specially secured rights over items that are confiscated only lapse after the court determines under conditions corresponding to those in subsection 2 stated. PCS. 4. Has one of those in subsection 1 and 2 mentioned persons after the criminal offence made disposals of proceeds or objects of the in section 75, subsection 2, the nature or rights thereon, the transferee or its value may be confiscated from the transferee, if the latter was aware of the transferee’s connection with the criminal act or has shown gross negligence in this regard, or if the transfer was made as a gift. PCS. 5. If a person who is responsible for confiscation pursuant to subsection 1−4, dies, his liability ceases. However, this does not apply to confiscation pursuant to section 75, subsection 1. Section 76a Full or partial confiscation of assets belonging to a person who is found guilty of a criminal offence may be carried out when 1) the act is of such a nature that it can yield significant benefits, and 2) it is punishable by law with imprisonment for 6 years or more or is a violation of the legislation on euphoric substances. PCS. 2. Under conditions as mentioned in subsection 1, full or partial confiscation of assets acquired by the concerned person’s spouse or cohabitant may be carried out, unless 1) the asset was acquired more than 5 years before the criminal act which forms the basis for confiscation pursuant to subsection 1, or 2) the marriage or cohabitation did not exist at the time of the acquisition. PCS. 3. Under conditions as mentioned in subsection 1, full or partial confiscation of assets transferred to a legal person over which the person concerned alone or together with his close associates has a determining influence may be carried out. The same applies if the person in question receives a significant part of the legal person’s income. However, confiscation cannot take place if the asset has been transferred to the legal person more than 5 years before the criminal act which forms the basis for confiscation pursuant to subsection 1. PCS. 4. Confiscation pursuant to subsection 1–3 cannot happen if the person in question proves that an asset was acquired in a legal manner or for legally acquired funds. Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 145 PCS. 5. Instead of confiscation of certain assets pursuant to subsection 1−3, an amount corresponding to their value or part thereof may be confiscated. Section 77 If there is confiscation pursuant to Section 75, subsection 1, or Section 76 a, and has any claim for compensation in connection with the offence, the confiscated can be used to cover the claim for compensation. PCS. 2. The same applies to objects and valuables confiscated pursuant to section 75, subsection 2 and 3, if the judgment makes a provision to that effect. PCS. 3. Has the convicted person in one of the In the cases referred to in 1 and 2, the aggrieved party has paid compensation after the judgment, the confiscation amount is reduced accordingly. Section 77a Objects which, due to their nature in connection with other existing circumstances, may be feared to be used in a criminal offence, may be confiscated, insofar as this is deemed necessary to prevent the criminal offence. Under the same conditions, confiscation of other assets, including money, can take place. Section 75, subsection 4, applies accordingly. ff. Interception of electronic communications to and from the suspect or accused person The interception of electronic communications to and from the suspect or accused person can be summarised within the next box as follows. The single provisions will be reproduced below the summary box: DK=*opted out of AFSJ= but see the Fourth Book of the Code of Judicial Procedure (Retsplejeloven) Chapter 67 and 68 provide for investigative rules and measures; Chapter 71 finally introduces special investigative measures such as telecommunications surveillance. (Kapitel 71: Indgreb i meddelelseshemmeligheden, observation, dataaflæsning, forstyrrelse eller afbrydelse af radioeller telekommunikation, blokering af hjemmesider og overtagelse af tv-overvågning) s. 780 Book Four of the Code of Judicial Procedure allows the interception of telecommunications in certain cases. S. 781 presents certain thresholds for the process of interception and the assignment if these measures. s. 786 stipulates the responsibility of telecommunication service providers to assist the police. s. 791c and d provide for very interesting measures. The police may interrupt the radio and telecommunication services in a region/or block a website. Overall these measures seem to be limited to the prevention of offences. 17 Danish Authorities Investigating PIF Acquis Offences 146 Denmark Authorisations by competent body: s. 783 “Intervention in the secrecy of communications takes place after the court’s order. The order shall state the telephone numbers, locations, addressees or consignments to which the intervention relates, cf. 2. Furthermore, the specific circumstances of the case are stated, on which it is based that the conditions for the intervention have been met. The ruling can be reversed at any time.” gg. Tracking & Tracing an Object Tracking & tracing an object is an effective means for an investigation into economic crime. In Denmark the police is allowed to carry out the following measures: DK=s. 791a Retsplejeloven Authorisations by competent body: s. 791a: “The police may carry out photographs or observations using binoculars or other apparatus of persons who are in a place which is not freely accessible (observation), if […].” See mainly s. 783: “Intervention in the secrecy of communications takes place after the court’s order. […]” hh. Other investigative Steps The Danish Judicial Code includes several other investigative steps: Chapter 75a Other investigative steps Section 812 Photographs of a suspect may only be shown to persons outside the police if 1) the person in question is reasonably suspected of an offence subject to public prosecution, and 2) the intervention must be assumed to be of significant importance for the investigation. PCS. 2. Decisions on the presentation of photographs are made by the police. Section 813 Photographs of a person who is not a suspect may only be shown to persons outside the police in accordance with the rules in Section 814 or Section 815. Section 814 Showing photographs of injured parties and other witnesses who have not consented, as far as possible in writing, to the showing may only take place if 1) the investigation concerns a crime which, according to the law, can result in imprisonment for 1 year and 6 months or more, and 2) the intervention must be assumed to be of decisive importance for the investigation. 18 19 Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 147 PCS. 2. Decisions on the presentation of photographs are made by the court by order. The ruling states the specific circumstances of the case, on which it is supported that the conditions for the intervention have been met. The ruling can be overturned at any time. PCS. 3. If the purpose of the intervention would be lost if a court order had to be awaited, the police can decide to present the photograph. If the person against whom the intervention is directed makes a request to this effect, the police must submit the case to the court as soon as possible and within 24 hours at the latest, which decides by order whether the intervention can be approved. The police must guide the person concerned about the right to bring the matter before the court. PCS. 4. Before the court makes a decision according to subsection 2 or 3, the person against whom the intervention is directed must be given access to make a statement. Section 815 The presentation of photographs which are kept by the police for the purpose of later identification, cf. Section 792 f, may, outside of the cases covered by Section 812 or Section 814, only take place if the investigation concerns an offence which, according to the law can result in imprisonment for 1 year and 6 months or more, and the photographed 1) within the last 5 years has been found guilty of an offence which, according to the law, can result in imprisonment for 1 year and 6 months or more, or 2) within the last 10 years has been found guilty of an offence which, according to the law, can result in imprisonment for 6 years or more. PCS. 2. Decisions on the presentation of photographs are made by the police. Section 816 Photographs as mentioned in Sections 812–815 may not be shown if, according to the purpose of the intervention, the importance of the case and the violation and inconvenience that the intervention may be assumed to cause to the person affected by it, it would be a disproportionate intervention. PCS. 2. The Minister of Justice lays down detailed rules on the procedure for showing photographs. Section 817 Presentation of a suspect to persons outside the police (direct confrontation) may only be carried out if 1) the person in question is reasonably suspected of an offence subject to public prosecution, and 2) the intervention must be assumed to be of significant importance for the investigation. PCS. 2. Presentation of an accused person in a confrontation parade for persons outside the police may, however, only be carried out if the person in question is reasonably Danish Authorities Investigating PIF Acquis Offences 148 Denmark suspected of an offence which, according to the law, can lead to imprisonment for 1 year and 6 months or more. PCS. 3. Presentation of a suspect in direct confrontation or of an accused in a confrontation parade may take place outside of the cases covered by subsection 1 and 2, if the person concerned gives consent to this. As far as possible, the consent must be in writing. PCS. 4. Demonstration of a suspect in direct confrontation or of an accused in a confrontational parade must not take place if, according to the purpose of the intervention, the importance of the case and the violation and disadvantage that the intervention can be assumed to cause to the person it affects, it would be a disproportionate intervention. PCS. 5. Decisions on the presentation of a suspect or accused as mentioned in subsection 1–3 are met by the police. PCS. 6. The Minister of Justice lays down detailed rules on the procedure for carrying out a confrontation parade. Section 818 The police may only publish information or other information that is suitable for establishing the identity of a suspected perpetrator, if 1) the person in question is reasonably suspected of an offence subject to public prosecution, and 2) the publication must be assumed to be of significant importance for the investigation, including for determining the identity of the person in question, or to prevent further offences. PCS. 2. Publication of a photograph of the suspected perpetrator may only take place if there is a reasonable suspicion that the person in question has committed an offence which, according to the law, can result in imprisonment for 1 year and 6 months or more. PCS. 3. Publication as mentioned in subsection 1 and 2 may not be carried out, however, if, according to the purpose of the intervention, the importance of the case and the violation and disadvantage that the intervention must be assumed to cause to the person affected by it, it would be a disproportionate intervention. PCS. 4. Decision on publication as mentioned in subsection 1 and 2 are met by the police. Section 819 If there is a particularly strong suspicion that a person whose identity is known to the police has committed an offence which, according to the law, can result in imprisonment for 1 year and 6 months or more, the police can search for the person in question through the press, radio, television or by other form of public search, if this can be assumed to be of decisive importance for the completion of the criminal prosecution or to prevent further offences of similar severity. Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 149 PCS. 2. In the event of a request as mentioned in subsection 1, information can be given about the intended crime and about the identity of the accused, including name, position and place of residence. During the search, a photograph of the person in question may also be published. PCS. 3. A search may not be carried out if, according to the purpose of the intervention, the importance of the case and the infringement and disadvantage that the intervention can be assumed to cause to the person affected by it, it would be a disproportionate intervention. PCS. 4. The decision on a search warrant is made by the police. Sections 820–821. (Repealed) b) Specific restrictions in national law that apply with regard to certain categories of persons or professionals with an LLP obligation Without prejudice to Article 29, the investigation measures set out in paragraph 1 of this Article may be subject to conditions in accordance with the applicable national law if the national law contains specific restrictions that apply with regard to certain categories of persons or professionals who are legally bound by an obligation of confidentiality. For special restrictions, see above “Hindrances to effective EU fraud and corruption investigations”. 2. Summary The core investigation measures, which are requested by Art. 30 EPPO Regulation from participating countries, exist in Denmark, too. Denmark has an equal “arsenal” of investigative powers regarding EU frauds – it only investigates them on its own, i.e. with its own national prosecution offices. 20 21 Danish Authorities Investigating PIF Acquis Offences 150 Denmark IV. On Cross-Border Investigations and the Enforcement of Assigned Measures in relation to Art. 31 and 32 EPPO Regulation Article 31 and 32 EPPO Regulation govern the procedures for cross-border investigative measures by the EPPO within the EU and are therefore highly important for any EDP as there is (still) a “lack of common rules on evidence” 96 despite the rules on mutual trust in the admissibility and the “free circulation of evidence” 97 . The wording ensures compliance with national laws, and aims at protecting procedural rights. 98 Any economic chamber of a national court 99 dealing with PIF charges, indictments and trials will need to closely focus on the admissibility of evidence as e.g. unlawful evidence cannot provide arguments within a judgment, see e.g. s. 261 German CPC 100 . If Denmark decides to join the EPPO, the presented Danish provisions on criminal investigations apply in the context of cross-border investigations. Thus, both articles are a cornerstone for effective investigations in cross-border crimes while maintaining cooperation between Member States and upholding fundamental rights (in the area of mutual trust). On December 21, 2023, the CJEU issued its first clarifying ruling on the EPPO in Case C-281/22, addressing cross-border investigative measures by the EPPO. 101 In this judgment the court said that when the EPPO conducts cross-border investigative measures, the law of the issuing state (where the investigation originates) applies to the decision authorising the measure. 102 However, the law of the executing state (where the measure is carried out) governs how the measure is implemented, ensuring compliance with national procedural safeguards and fundamental rights in the executing Member State. The impact of the decision was widely discussed by academia and lawyers. 103 96 Allegrezza 2024, p. 291 using this as an example to request the EU to finally adopt or at least make the “approximation of evidence law” a key priority. Already on this point Satzger and Zimmermann 2019, pp. 633 with the explanation of forum regit actum principle. 97 Ligeti 2024, pp. 483 providing a short in-depth analysis on the theme. 98 Claes and Franssen 2022 highlighting why customs procedures are a good example for the EPPO’s potential struggle with procedural safeguards. They call it a clash of enforcement procedures, which is quite fitting the picture; on the EPPO’s possibilities see as well Ligeti 2024, pp. 460 et seq. summarizing its role in general. 99 See Niemz 2020, p. 50 explaining the German system of court authority in PIF matters. The situation is not the same in the whole EPPO zone, but most states (cf. compare the other volumes) tend to locate charges on a higher or superior court or a specialized chamber in tax, customs or economic crimes. 100 The situation is nearly the same in most EU Member States, but in the details the rules on exclusion of evidence are presumably highly divergent, see Ligeti 2024, p. 483, who uses the example of Italy and partly Croatia, where this (unlawfully gathered) piece of evidence must be excluded even from the (investigation or court) file itself. 101 ECJ, Case C-281/22, Criminal proceedings against G. K. and Others, Judgment of 21 December 2023, ECLI:EU:C:2023:1018. 102 Ibid., para 53 et seq., which is legally based on the mutual trust principle. 103 Herrnfeld 2024, pp. 370–380 pointing out that efficiency (what remembers of the effet utile debate) is very important for the ECJ. And see another critical comment Pfister 2024, p. 1. 1 2 3 Danish Authorities Investigating PIF Acquis Offences EPPO/OLAF Compendium 151 From our point-of-view, this case clarified that the assisting Member State can only review procedural aspects of the measures, while substantive legality falls under the handling Member State’s jurisdiction. This delineation is important to understand the Court’s interpretation of Article 31 of the EPPO Regulation and impacts future EPPO investigations, emphasizing that assisting states have limited judicial review capabilities compared to handling states. 104 Article 32 complements Article 31 by allowing EDPs to assign investigative measures across different Member States. These measures include actions like executing e.g. search warrants, seizing evidence, or conducting interrogations. Article 32 emphasizes the importance of respecting national legal principles while facilitating cross-border investigations. 105 104 Pfister 2024, passim. 105 Cf. the Bulgarian (→ Vol. III) and German volume, which include specific overviews for all Member States. They can be accessed on the Logos Open Access Platform. 4 5 Article 3 External investigations 254 Denmark of the goods, etc., as are necessary for the examination of foreign trade statistics and special import, export and transit regulations, as there are currency, health, safety, veterinary, plant pathology or other reasons for these goods. Last but not least support to the inspectors is requested in addition by Chapter 19, s. 74 para 2 of the VAT Act, which says: “PCS. 2. the owners and employees of the companies must assist the customs and tax administration with the checks referred to in paragraph 1 1.” 207 And the provision further requests: PCS. 3. the Customs and Tax Administration shall be entitled, under the same rules as laid down in paragraph 1, 1 to carry out controls in connection with taxable acquisitions. PCS. 4. The material referred to in subsection 1 shall be handed over or presented to the Customs and Tax Administration on request. (6) Preservation of Evidence (Customs Code, General Tax Code) The preservation of evidence is a key element of any investigation into irregularities or a fraud scheme. g) Single measures in Denmark aa. The taking of statements from Economic Operators Single measures from ss. 15 and 16 of the Legislative Decree No. 160 of 7 February 2019 on the administration of grants from the European Regional Fund and the European Social Fund/Lovbekendtgørelse nr. 160 af 7. februar 2019 om administration af tilskud fra Den Europæiske Regionalfond og Den Europæiske Socialfond can be viewed above → Investigative powers around structural funds and internal policies, mn. 45. bb. Inspections Rules on inspections can be found in the following laws: (1) Controls of the Regional and Social Fund The controls of the regional and social fund progress e.g. according to s. 16 (para 4–6) Legislative Decree No. 160 of 7 February 2019 on the administration of grants from the European Regional Fund and the European Social Fund / Lovbekendtgørelse nr. 160 af 7. februar 2019 om administration af tilskud fra Den Europæiske Regionalfond og Den Europæiske Socialfond (→ Investigative powers around structural funds and internal policies, mn. 45). 207 Stk. 2. Virksomhedernes indehavere og ansatte skal være toldog skatteforvaltningen behjælpelige ved eftersyn som nævnt i stk. 1. 69 70 71 72 73 Article 3 External investigations EPPO/OLAF Compendium 255 (2) Controls and Inspections in the area of the European Regional Fund For control and inspections in the area of the European Regional Fund the measures are found in the ss. 33–35 Executive order no. 586 of 3 June 2014 on eligibility for support, accounting, audit and control etc. in connection with the payment of grants from the European Regional Fund and the European Social Fund with later amendments. /Bekendtgørelse nr. 586 af 3. juni 2014 om støtteberettigelse, regnskab, revision og kontrol m.v. i forbindelse med udbetaling af tilskud fra Den Europæiske Regionalfond og Den Europæiske Socialfond med senere ændringer (→ Investigative powers around structural funds and internal policies, mn. 46). Here, especially powers regarding onthe-spot checks are given to “representatives from the European Commission, with the participation of representatives from the Danish Business Authority, or whoever the agency authorises to do so” according to s. 34 para. 1, 2. Even representatives of the European Court of Auditors may have such powers (para 3). (3) Control and Audits in the area of Grants of the ERF and ESF According to s. 24 of the Executive Order No. 1810 of 30 December 2018 on the administration of grants from the European Regional Fund and the European Social Fund./Bekendtgørelse nr. 1810 af 30. december 2018 om administration af tilskud fra Den Europæiske Regionalfond og Den Europæiske Socialfond (→ Investigative powers around structural funds and internal policies, mn. 47) “[r]epresentatives from the European Commission, the European Court of Auditors, the National Audit Office and the Danish Business Authority, or whoever the agency authorises to do so, can check onsite management and control systems of the public or private legal entities […].” (4) Controls in the General Tax Area In the area of tax controls the following provisions from the Tax Control Act apply: Chapter 5 Powers of control over the taxable person Powers of control over traders Section 53 Tax Control Act Traders 208 who keep accounts are obliged, upon request from the Customs and Tax Administration, to submit their accounting records with annexes for both previous and current financial years, as well as other documents that may be relevant for the control of 208 Kapitel 5 Kontrolbeføjelser over for den skattepligtige Kontrolbeføjelser over for erhvervsdrivende § 53. Erhvervsdrivende, der fører regnskab, har pligt til efter anmodning fra toldog skatteforvaltningen at indsende deres regnskabsmateriale med bilag såvel for tidligere som for det løbende regnskabsår og andre dokumenter, der kan have betydning for kontrollen af den pågældendes skatteansættelser, herunder for afgørelsen af skattepligt her til landet. Indsendelsespligten omfatter også regnskabsmateriale m.v. vedrørende den skattepligtiges virksomhed i udlandet, på Færøerne eller i Grønland. 74 75 76 Article 3 External investigations 256 Denmark the person’s tax assessments, including the determination of tax liability in this country. The obligation to submit also extends to accounting material etc. relating to the taxpayer’s business activities abroad, in the Faroe Islands or in Greenland. PCS. 2. If the accounting material etc. is in the possession of a third party, that party shall, even if he or she has a right of retention, hand over the material to the Customs and Tax Administration upon request. The Customs and Tax Administration shall return the material to the respective third party after use. PCS. 3. If the trader does not comply with a request under subsection 1 within the time limit specified in the request, the Customs and Tax Administration may make a discretionary assessment under section 74. Section 54 209 The Customs and Excise Administration shall, if required, have access at any time against proper identification without a court order to the business premises of the entrepreneur and to workplaces outside the business premises of the entrepreneur, but not to workplaces serving a third party as a private residence or as a holiday home, including means of transport used for business purposes, for the purpose of reviewing accounting records with annexes and other documents that may be relevant for the control of the tax assessment of the person concerned. Insofar as the aforementioned accounting data etc. are recorded electronically, the access of the customs and tax administration also includes electronic access to them. Under the same conditions as mentioned in the 1st and PCS. 2. Does the Customs and Tax Administration have access to an inventory of cash in hand, cash terminals and the like? Stk. 2. Er regnskabsmaterialet m.v. i tredjemands besiddelse, skal denne, selv om den pågældende har tilbageholdsret herover, efter anmodning udlevere materialet til toldog skatteforvaltningen. Toldog skatteforvaltningen leverer materialet tilbage til den pågældende tredjemand efter benyttelsen. Stk. 3. Efterkommer den erhvervsdrivende ikke en anmodning efter stk. 1 inden den frist, der er fastsat i anmodningen, kan toldog skatteforvaltningen foretage en skønsmæssig ansættelse efter § 74. 209 § 54. Toldog skatteforvaltningen har, hvis det skønnes nødvendigt, til enhver tid mod behørig legitimation uden retskendelse adgang til den erhvervsdrivendes lokaliteter samt arbejdssteder uden for den erhvervsdrivendes lokaler, dog ikke arbejdssteder, der tjener til tredjemands privatbolig eller fritidsbolig, herunder transportmidler, der anvendes erhvervsmæssigt, for at gennemgå regnskabsmateriale med bilag og andre dokumenter, der kan have betydning for kontrollen af den pågældendes skatteansættelser. I det omfang de nævnte regnskabsoplysninger m.v. er registreret elektronisk, omfatter toldog skatteforvaltningens adgang også en elektronisk adgang hertil. Efter samme betingelser som nævnt i 1. og 2. pkt. har toldog skatteforvaltningen adgang til at foretage opgørelse af kassebeholdninger, kasseterminaler og lign. og foretage opgørelse og vurdering af lagerbeholdninger, besætning, inventar, maskiner og andet driftsmateriel. Stk. 2. Drives virksomheden fra en ejendom, som også anvendes som bolig, kan toldog skatteforvaltningen gennemføre kontrol på ejendommen efter samme betingelser som i stk. 1. Stk. 3. Ved kontrollen efter stk. 1 og 2 skal ejeren af virksomheden og dennes ansatte yde toldog skatteforvaltningen fornøden vejledning og hjælp. Stk. 4. Politiet yder om fornødent toldog skatteforvaltningen bistand til gennemførelse af kontrollen efter stk. 1 og 2. Article 3 External investigations EPPO/OLAF Compendium 257 PCS. 2. if the business is operated from a property that is also used as a residence, may the Customs and Tax Administration conduct an inspection of the property under the same conditions as mentioned in paragraph 1 1. PCS. 3. In the inspection referred to in paragraphs (1) and (2), the owner of the business and his employees shall give the necessary guidance and assistance to the Customs and Tax Administration. PCS. 4. If necessary, the police shall assist the customs and tax administration in carrying out the inspection referred to in paragraph 1 1 and 2. Chapter 6 Cross-auditing powers vis-à-vis third parties Information on cross-auditing Section 57 210 Traders and legal persons who are not traders must, at the request of the Customs and Tax Administration, submit accounting documents with annexes for both the previous and the current financial year and other documents relevant to the tax audit Assessment of other named traders. PCS. 2. the Customs and Tax Administration shall have access, against proper identification, at any time and without a court order, to an entrepreneur or a legal person other than an entrepreneur for the purpose of conducting an on-site examination of accounting records, annexes and other documents as mentioned in subsection 1. During the examination, the Customs and Tax Administration may obtain the information mentioned in subsection 1. PCS. 3. if necessary, the police shall assist the Customs and Tax Administration in carrying out the checks referred to in sub-section 1 1 and 2. PCS. 4. the information, cf. subsection 1 and the intervention, cf. subsection 2, must be necessary for the tax control. 210 Kapitel 6 Kontrolbeføjelser over for tredjemand Oplysninger til krydsrevision § 57. Erhvervsdrivende og juridiske personer, som ikke er erhvervsdrivende, skal efter toldog skatteforvaltningens anmodning indsende regnskabsmateriale med bilag såvel for tidligere som for det løbende regnskabsår og andre dokumenter, der har betydning for kontrol af andre navngivne erhvervsdrivendes skatteansættelse. Stk. 2. Toldog skatteforvaltningen har til enhver tid mod behørig legitimation uden retskendelse adgang til hos en erhvervsdrivende eller en juridisk person, som ikke er erhvervsdrivende, at foretage gennemgang på stedet af regnskabsmateriale, bilag og andre dokumenter som nævnt i stk. 1. Ved gennemgangen kan toldog skatteforvaltningen sikre sig oplysninger som nævnt i 1. pkt. Stk. 3. Politiet yder om fornødent toldog skatteforvaltningen bistand til gennemførelse af kontrollen efter stk. 1 og 2. Stk. 4. Oplysningerne, jf. stk. 1, og indgrebet, jf. stk. 2, skal være nødvendige for skattekontrollen. Article 3 External investigations 258 Denmark (5) Inspections in the VAT Area Inspections in the area of VAT revenue are regulated in Chapter 19 of the VAT Act, ss. 74 et seq.: Chapter 19 Control provisions Section 74 211 The Customs and Tax Administration shall, if necessary, have access at any time, against proper identification and without a court order, to inspect the premises used by the enterprises and to inspect the enterprises’ stocks, business books, other accounting documents and correspondence, etc., irrespective of whether this information is stored on paper or on computer media. Control access by the customs and tax administration as mentioned in 1. point. This also includes control access at workplaces outside the company’s premises as well as in means of transport used for business purposes. Control as mentioned in 2. point. However, it cannot be carried out on a property that is only used as a private residence or holiday home. (6) Controls in the Customs Area Rules on inspection are as well foreseen by the s. 28 Customs Act (→ Investigative powers in the area of customs duties and VAT (General Tax Code), mn. 40). cc. The seizure of digital forensic evidence including bank account information The seizure of digital forensic evidence including bank account information becomes increasingly important. The recent changes of the OLAF Regulation No 883/2013 (as amended 2020/2223) codified that OLAF shall under the same conditions that apply to national competent authorities have access to bank account information. The relevant national law shall be displayed by the manual on the following pages: The VAT Act for example contains in Chapter 19 a provision, which encompasses digital evidence, but does not relate to bank account information: 211 Kapitel 19 Kontrolbestemmelser § 74. Toldog skatteforvaltningen har, hvis det skønnes nødvendigt, til enhver tid mod behørig legitimation uden retskendelse adgang til at foretage eftersyn i lokaler, der benyttes af virksomhederne, og til at efterse virksomhedernes varebeholdninger, forretningsbøger, øvrige regnskabsmateriale samt korrespondance m.v., uanset om disse oplysninger opbevares på papir eller på edb-medier. Toldog skatteforvaltningens adgang til kontrol efter 1. pkt. omfatter også adgang til kontrol på arbejdssteder uden for de lokaler, hvorfra virksomheden drives, samt i transportmidler, der anvendes erhvervsmæssigt. Kontrol som nævnt i 2. pkt. kan dog ikke gennemføres på en ejendom, der alene tjener til privatbolig eller fritidsbolig. 77 78 79 80 Article 3 External investigations EPPO/OLAF Compendium 259 Chapter 19 Control provisions Section 74 [For original legal text see above → Inspections in the VAT Area, mn. 76] The Customs and Tax Administration shall, if necessary, have access at any time, against proper identification and without a court order, to inspect the premises used by the enterprises and to inspect the enterprises’ stocks, business books, other accounting documents and correspondence, etc., irrespective of whether this information is stored on paper or on computer media. dd. Acquisition of digital evidence and Digital forensic operations within inspections or on-the-spot checks Digital forensic operations within inspections or on-the-spot checks became increasingly important in the last decade already. The VAT Act allows to take a look at data carriers and digital storages during inspections: Chapter 19 Control provisions Section 74 [...] irrespective of whether this information is stored on paper or on computer media. ee. Investigative missions in third countries Danish authorities might accompany OLAF on a mission to third countries (especially in the customs sector this is a well-known possibility to trace a fraud route back to its origin). h) Cooperation and mutual assistance agreements Within Denmark itself the VAT offices will be provided with information by all other relevant authorities: Section 76 Other public bodies must provide the Customs and Tax Administration, on request, with all information necessary for the registration of businesses and the verification of the payment or repayment of tax. PCS. 2. the police shall assist the customs and tax administration in accordance with rules established after negotiations between the Minister of Taxes and the Minister of Justice. PCS. 3. the Customs and Tax Administration shall be subject to the same conditions as laid down in section 74(1) 1, shall be entitled to inspect the main post offices receiving parcels, etc. from abroad. Likewise, checks may be carried out on companies receiving parcels etc. from abroad for delivery in this country. 81 82 83 84 Article 4 Internal investigations 260 Denmark 3. Article 4 Internal investigations 1. Investigations within the institutions, bodies, offices and agencies in the areas referred to in Article 1 shall be conducted in accordance with this Regulation and with the decisions adopted by the relevant institution, body, office or agency (‘internal investigations’). 8. Without prejudice to Article 12c(1), where, before a decision has been taken whether or not to open an internal investigation, the Office handles information which suggests that there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union, it may inform the institution, body, office or agency concerned. Upon request, the institution, body, office or agency concerned shall inform the Office of any action taken and of its findings on the basis of such information. Where necessary, the Office shall also inform the competent authorities of the Member State concerned. In this case, the procedural requirements laid down in the second and third subparagraphs of Article 9(4) shall apply. If the competent authorities decide to take any action on the basis of the information transmitted to them, in accordance with national law, they shall, upon request, inform the Office thereof. Art. 4 refers to investigations conducted within the IBOAs. These investigations aim to detect and combat fraud, corruption, and other illegal activities detrimental to the EU budget as outlined in Article 1 (see above → 1.). Any IBOA has internal rules. They can be accessed. 212 When OLAF deems it necessary, national authorities must be notified. 213 The purpose is to enable national action in cases where an OLAF investigation reveals potential criminal conduct that falls under national jurisdiction. These internal investigations of OLAF can lead to repercussions at national level i.e. the level of the authorities that cooperate with OLAF and which e.g. employed the economic operator, managed his funds etc. or who are responsible for disciplinary actions for officials that work at Union level or as a national expert for OLAF (corruption cases). The relationship of national disciplinary, union disciplinary proceedings and national criminal proceedings is incredibly important. 214 212 ECA 2019b pointing at p. 12 at its mandate and that it assesses how effectively OLAF manages the risk of fraud. Do not confuse the ECA task with the task of the Supervisory Committee, which is mainly established to control internal procedures and OLAF’s respect to its legal foundation and other legal sources such as guidelines and internal work rules. The ECA pointed out that it does not focus on a control of internal investigations: “Nor did we examine internal investigations against officials or other EU employees, members of institutions or bodies, or heads of offices or agencies.” 213 See Bovend’Eerdt 2024, 3.2 OLAF’s Institutional Partner in the Netherlands, who explains this quite broad and correct. Still we included even other authorities to make the vision even broader and included the AFCOS report information as well as some authorities, which were only mentioned in the managing area. 214 See ECJ, Research note, Impact of ongoing criminal proceedings on the conduct of disciplinary proceedings, March 2020, https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-09/ndr_2020_001_neutralisee_en. pdf. Accessed 31 December 2024. 1 Article 4 Internal investigations EPPO/OLAF Compendium 261 a) References to national law, para 8 Any action in accordance with national law shall mean that the special investigative steps, which only the national authorities can carry out, shall be not done without informing OLAF of the action taken. This might involve the recovery of a sum, a civil claim, a disciplinary action etc. It might as well contain the submission of information. b) Competent authorities - Danish Business Authority - Danish Agency for Agriculture, National Board of Agriculture - Housing and Planning Agency - Danish Fisheries Agency - Customs and Tax administration/Customs Agency/Tax Agency 2 3 Article 5 Opening of investigations 262 Denmark 4. Article 5 Opening of investigations […] 5. If the Director-General decides not to open an investigation, he or she may without delay send any relevant information, as appropriate, to the competent authorities of the Member State concerned for appropriate action to be taken in accordance with Union and national law or to the institution, body, office or agency concerned for appropriate action to be taken in accordance with the rules applicable to that institution, body, office or agency. The Office shall agree with that institution, body, office or agency, if appropriate, on suitable measures to protect the confidentiality of the source of that information and shall, if necessary, ask to be informed of the action taken. When the Director-General of OLAF decides not to open an investigation, the office can refer relevant information to the competent national authorities of the Member State concerned or to the relevant EU institution, body, office or agency for further action. This referral is intended to ensure that any issues identified are addressed appropriately according to Union and Danish laws or the internal rules of the relevant institution. a) Competent authorities These authorities may be competent to open investigations in the different areas mentioned under Art. 3 (see above): - Danish Business Authority - Danish Agency for Agriculture, National Board of Agriculture - Housing and Planning Agency - Danish Fisheries Agency - Customs and Tax administration/Customs Agency/Tax Agency b) National rules Amongst other codes, the following are applicable in the context of Art. 5 OLAF regulation: Customs Act Chapter 4 Control and customs processing Collection Section 10 The 215 customs and tax administration collects customs duties and taxes on goods which are not in free circulation in the EU’s customs territory and which are imported into the 215 Kapitel 4 Kontrol og toldbehandling Opkrævning § 10 Toldog skatteforvaltningen opkræver told og afgifter af varer, som ikke er i fri omsætning i EU’s toldområde, og som indføres i det danske toldområde, og fører det fornødne tilsyn og kontrol i forbindelse hermed. 1 2 3 Article 5 Opening of investigations EPPO/OLAF Compendium 263 Danish customs territory, and carries out the necessary supervision and control in connection with this. PCS. 2. The customs and tax administration collects or reimburses customs duties and taxes on goods which are exported from the Danish customs territory with a view to export from the EU customs territory, and carries out the necessary supervision and control in connection with this. PCS. 3. The Minister of Taxation may lay down rules for control of and customs processing of the items in subsection 1–2 goods in accordance with the relevant EU regulations. Section 24 216 The customs and tax administration has the right to pursue and stop persons who evade or are presumed to evade control and who bring or are presumed to bring goods for which no customs duties or taxes have been paid. The customs and tax administration also has the right in such cases to carry out an investigation in houses, means of transport, etc., when this happens in the immediate continuation of the pursuit. PCS. 2. The provision in subsection 1 applies correspondingly for persons who bring or are assumed to bring cash equivalent to the value of 10,000 euros or more, or who bring or are assumed to bring goods for which safety, health, veterinary, plant pathology, currency or other reasons, a ban on importation, exportation or transit has been established. Chapter 6 Other provisions Section 62 In 217 cases where a state that grants customs preference for goods exported from the Danish customs territory to the territory of the state in question wants to initiate an inStk. 2. Toldog skatteforvaltningen opkræver eller tilbagebetaler told og afgifter af varer, som udføres fra det danske toldområde med henblik på udførsel fra EU’s toldområde, og fører det fornødne tilsyn og kontrol i forbindelse hermed. Stk. 3. Skatteministeren kan fastsætte regler for kontrol med og toldbehandling af de i stk. 1-2 omhandlede varer i overensstemmelse med EU’s bestemmelser herom. 216 § 24. Toldog skatteforvaltningen har ret til at forfølge og standse personer, der unddrager sig eller antages at unddrage sig kontrol, og som medfører eller antages at medføre varer, for hvilke der ikke er betalt told eller afgifter. Toldog skatteforvaltningen har endvidere ret til i sådanne tilfælde at foretage undersøgelse i huse, befordringsmidler m.v., når dette sker i umiddelbar fortsættelse af forfølgelsen. Stk. 2. Bestemmelsen i stk. 1 finder tilsvarende anvendelse for personer, som medfører eller antages at medføre likvide midler, der svarer til værdien af 10.000 euro eller derover, eller som medfører eller antages at medføre varer, for hvilke der af sikkerhedsmæssige, sundhedsmæssige, veterinære, plantepatologiske, valutamæssige eller andre grunde er fastsat forbud mod indførsel, udførsel eller transit. 217 § 62. I tilfælde, hvor en stat, der indrømmer toldpræference for varer, der er udført fra det danske toldområde til den pågældende stats område, ønsker iværksat en undersøgelse af rigtigheden af dokumenter vedrørende oprindelse, toldgodtgørelse og toldmæssig status for sådanne varer, samt i øvrigt i tilfælde, hvor der er fremkommet forhold, Article 7 Investigations procedure 270 Denmark (customs ports). Unloading and loading of goods as well as disembarkation and embarkation of passengers may only take place in customs ports. The customs and tax administration can, when special circumstances call for it, allow unloading and loading to take place elsewhere. PCS. 3. The customs and tax administration determines where in ports and airports disembarkation of passengers to the Danish customs area can take place. Section 20 The customs and tax administration may, without cost to the customs and tax administration, make special requirements for the construction and furnishing of the places mentioned in Section 19 where goods are unloaded or loaded, or where passengers are disembarked or taken on board. The customs and tax administration may, in addition, demand that suitable facilities be made available at no cost to it for the physical examination of goods that have been unloaded or are to be loaded, and any means of transport that have brought or are to bring goods. The customs and tax administration can similarly demand that, at land-based connections between Denmark and abroad, suitable facilities, including land facilities, be made available for the physical examination of means of transport and persons when entering or exiting the Danish customs territory, at no cost to them. PCS. 2. When establishing passenger routes between places abroad and places in the Danish customs territory, as well as when approving those in Section 19, subsection 1, mentioned airports, the customs and tax administration may demand that, without cost to them, appropriately equipped premises and facilities are made available for the inspection of passengers, etc. PCS. 3. The customs and tax administration may require that at places where goods are loaded or unloaded, or where passengers are disembarked or taken on board, to the extent necessary and at no cost to the customs and tax administration, roadblocks are made that may not be passed without customs clearance. and the permission of the tax administration. PCS. 4. The customs and tax administration may refuse to approve a port or airport in accordance with § 19, if the requirements for facilities etc. mentioned in subsection 1–3, not fulfilled. An approval can be revoked if the conditions for an approval are no longer present. PCS. 5. It is the duty of ports and airports to notify the customs and tax administration of the changes in the port or airport’s operations, facilities or Article 7 Investigations procedure EPPO/OLAF Compendium 271 furnishings which may be of importance to the customs and tax administration’s requirements for those in subsection 1 mentioned facilities and equipment. Section 21 The Minister of Taxation may lay down rules for the customs and tax administration’s control of and customs processing of salvaged vessels, aircraft and goods. Supervision and control of people Section 22 The Minister of Taxation may lay down rules on the customs and tax administration’s control of and customs processing of persons and may also determine where and in what manner the customs processing shall take place. Section 23 Persons who travel between third countries and the Danish customs territory must, upon entering and exiting the Danish customs territory, stop for control uninvited and must also stop for control when the customs and tax administration demands it. PCS. 2. Those in subsection The persons mentioned in 1 have a duty to declare to the customs and tax administration all goods brought in accordance with those of the EU and those pursuant to § 10, subsection 3, laid down rules on this. The mentioned persons must also provide the information necessary for the exercise of the control. PCS. 3. Persons who enter or leave the Danish customs territory and who have been on board ships or aircraft, who are on trains, or who travel on public roads, must, when the customs and tax administration so demand, stop for control. The same applies to people traveling at country borders, along coasts, in ports and airports or at landing sites. PCS. 4. Those in subsection 1 and 3 and § 10c, subsection 1, mentioned persons and persons on board ships and in aircraft must, when the customs and tax administration requests it, give their name and place of residence. The customs and tax administration may require this information to be documented. PCS. 5. Those in subsection 1 and 3 and § 10c, subsection 1, the mentioned persons must show all compartments and stores in luggage etc. and their Article 7 Investigations procedure 272 Denmark possible means of transport and, to the extent that the customs and tax administration wants it, unpack luggage etc. Section 24 The customs and tax administration has the right to pursue and stop persons who evade or are presumed to evade control and who bring or are presumed to bring goods for which no customs duties or taxes have been paid. The customs and tax administration also has the right in such cases to carry out an investigation in houses, means of transport, etc., when this happens in the immediate continuation of the pursuit. PCS. 2. The provision in subsection 1 applies correspondingly for persons who bring or are assumed to bring cash equivalent to the value of 10,000 euros or more, or who bring or are assumed to bring goods for which safety, health, veterinary, plant pathology, currency or other reasons, a ban on importation, exportation or transit has been established. Section 25 The customs and tax administration is entitled to inspect persons who, for the purpose of control, are stopped in accordance with the provisions of Sections 10 c, 23 and 24. PCS. 2. Inspections of persons must be carried out with the greatest possible consideration and must not be more extensive than the control purposes necessitate. PCS. 3. Inspections, which are not limited to the outer clothing, may only be carried out when there is reasonable reason to believe that the person concerned is illegally carrying goods etc. concealed on his person, and only on the order of the highest representative of the customs and tax administration present. The person to be inspected may demand that the inspection be witnessed by a witness appointed by the person in question. The inspection may only be carried out and witnessed by persons of the same gender as the person to be inspected. However, this does not apply to witnesses appointed by the person concerned. PCS. 4. Inspection as mentioned in subsection 3 can, with the consent of the person concerned, be carried out using a body scan. Section 26 The Minister of Taxation may, to the extent prescribed in the international agreements acceded to by Denmark or in provisions laid down by the EU, Article 7 Investigations procedure EPPO/OLAF Compendium 273 or when the control conditions permit, deviate from § 23, subsection 1, 2 and 5, and section 25. Control of information and documents Section 27 The customs and tax administration may demand information from importers, exporters, producers, other traders and business organisations to fulfil the obligation to provide information to the EU. PCS. 2. The person who declares goods for customs processing in accordance with the relevant EU regulations must provide such information and declarations about the nature and nature of the goods, etc., as are necessary for checking the foreign trade statistics and the special import, export and transit regulations, as currency, health, safety, veterinary, plant pathological or other reasons are established for these goods. Section 28 The customs and tax administration has, if it is deemed necessary, at any time against proper identification without a court order, the right to inspect premises used by persons who have imported or exported or managed the import or export of goods, which must be processed by customs in the Danish customs area, as well as on the premises of companies applying for customs reimbursement. PCS. 2. The customs and tax administration may, to the extent that the purpose makes it necessary, carry out inspections of goods and stocks of those in subsection 1 and § 27, subsection 1, mentioned persons etc. and inspect their business books, other accounting material and correspondence etc PCS. 3. Those in subsection 1 and § 27, subsection 1, mentioned persons and companies and the persons employed by them must provide the customs and tax administration with assistance when carrying out inspections. PCS. 4. In addition, the customs and tax administration always has the right to carry out an inspection of goods for which customs duties and the taxes settled in connection with the importation have not been paid. Paragraph 5. That in subsection The material referred to in 2 must be handed over or submitted to the customs and tax administration upon request. PCS. 6. To the extent that information as mentioned in subsection 2 is registered electronically, the customs and tax administration’s access to this information also includes electronic access to it. Article 7 Investigations procedure 274 Denmark PCS. 7. The police provide the customs and tax administration with assistance in carrying out the control pursuant to subsection 1. The Minister of Justice may, after negotiation with the Minister of Taxation, lay down detailed rules in this regard. Section 28a If a request for material pursuant to s. 28 subsection 5 or regulations issued by the EU in the area of customs legislation, the customs and tax administration can order that the material must be submitted within a set deadline, and impose daily compulsory fines from the time limit is exceeded and until the order is complied with or a fine is issued for violation of § 78a, subsection 1 or 2, as a result of the order not being complied with. PCS. 2. Complaint about an order pursuant to subsection 1 does not have suspensory effect. The National Tax Court or the Tax Appeal Administration may, however, add a complaint about an order pursuant to subsection 1 suspensory effect if special circumstances speak for it. The National Tax Court’s decision can be taken by a presiding judge. Order on customs processing Customs investigation, etc. Sections 45, 46 → see above Article 5 Opening of investigations, National rules. → See also the codes provided under Tax and customs investigation (Customs Code/General Tax Code) and Investigative powers in the area of customs duties and VAT (General Tax Code). Para 3a (a) (b) Customs Act and Order on customs processing Para 6 (c) Customs Act and Order on customs processing Para 7 Customs Act: Chapter 4 – Control and Customs Processing Access to control Section 15 For the purpose of searching and checking goods without a court order, the customs and tax authorities can travel unhindered everywhere along coasts, in ports, in airports, at landing sites, in transport centres, in trains, on railway areas and on roads to which there is public access. Searches and checks of goods in any shipment (letters, parcels, etc.) can be carried out at Article 7 Investigations procedure EPPO/OLAF Compendium 275 the mentioned locations, regardless of carrier, in warehouses, in containers, in means of transport and in other temporary or permanent places that can be used for storing goods, etc. PCS. 2. The customs and tax administration has the right to unhindered access everywhere along the country border. If adjacent areas are fenced or cordoned off, the owners must take such measures that the customs and tax administration is guaranteed unhindered passage at all times. […] Section 83 Goods that are smuggled or attempted to be smuggled or found in connection with investigations pursuant to Section 24, as well as goods for which, contrary to Section 11, subsection 1–3, and Section 11a, subsection 1, has evaded or sought to evade taxes, is taken into custody by the customs and tax administration or by the police on behalf of the customs and tax administration. In addition, smuggled goods or other goods, in respect of which duties or taxes have been evaded or sought to be evaded from the public, may be taken into custody or seized by the aforementioned authorities in compliance with Chapter 74 of the Norwegian Administration of Justice Act on seizure. PCS. 2. cash and cash equivalents that are available in connection with the customs and tax administration’s control pursuant to Section 10a, Section 10c, subsection 1 and 2, and Section 10d, subsection 1 and 3, or article 3, 4 or 6 of Regulation 2018/1672/EU of the European Parliament and of the Council of 23 October 2018 on the control of liquid funds brought into or out of the Union, may be detained by this authority. Detention can take place for up to 72 hours if it is to be feared that the liquid funds in question originate from or will be used for a violation of the Criminal Code or other legislation that is subject to public prosecution. When detention is initiated, chapter 74 of the Administration of Justice Act on seizure applies with the changes that follow from the 1st and 2nd sections. PCS. 3.When due customs, tax and fine amounts and court costs have been paid, goods that have been taken into custody or seized are handed over, subject to the applicable general import regulations, to the person from whom they have been taken into custody or seized, or to someone else, who proves to be entitled to the goods. If the goods are not collected within 2 months after the end of the month in which the case is finally decided, they will be sold by the customs and tax administration at a duly an- Article 7 Investigations procedure 276 Denmark nounced public auction. However, goods which, in the opinion of the customs and tax administration, are outdated or unrealizable can be destroyed under control after the expiry of the deadline. From the amount received at the auction, the public’s costs of storage and sale are first covered, and then customs, tax and fine amounts owed and court costs. PCS. 4. The Customs and Tax Administration may, upon application, extend the period in subsection 3, 2nd point, said deadline, but no more than 1 year. PCS. 5. With regard to securing and recovery of fine claims and court costs, subsection 3 only use with the restrictions laid down in Section 76 of the Criminal Code regarding confiscation pursuant to Section 75, subsection of the same Act. 2. Source: Own Research. b) References to national authorities - Danish Business Authority - Danish Agency for Agriculture, National Board of Agriculture - Housing and Planning Agency - Danish Fisheries Agency - Customs and Tax administration/Customs Agency/Tax Agency 6 Article 8 Duty to inform the Office EPPO/OLAF Compendium 277 6. Article 8 Duty to inform the Office […] 2. The institutions, bodies, offices and agencies and, unless prevented by national law, the competent authorities of the Member States shall, at the request of the Office or on their own initiative, transmit without delay to the Office any document or information they hold which relates to an ongoing investigation by the Office. […] 3. The institutions, bodies, offices and agencies and, unless prevented by national law, the competent authorities of Member States shall transmit without delay to the Office, at the request of the Office or on their own initiative, any other information, documents or data considered pertinent which they hold, relating to the fight against fraud, corruption and any other illegal activity affecting the financial interests of the Union. A report obligation can at least be determined from the principle of sincere cooperation with Union bodies, cf. Art. 4 para 3 TEU. This principle applies in all areas of potential irregularities and frauds (for the typology of EU frauds see the EU Fraud Commentary and see above Art. 26 EPPO Regulation, where the material scope of the EPPO is determined). Additionally Art. 12a in combination with Art. 8 para 2 and 3 OLAF Regulation 883/2013 obliges the AFCOS of the present Member State to report to OLAF any of the requested material. The obligations exist throughout the different areas of irregularities (tax revenue related, customs revenue related; tax expenditure related i.e. structural funds area, direct grants etc.) and are therefore enshrined in different national laws. The competent authorities of the Member States are either the same that can conduct external investigations (in cases of resistance, Sigma Orionis 220 ) or those that must be informed by the Director General if he/she decides not open a case according to Art. 5 para 5 OLAF Regulation No 883/2013 as amended 2020/2223. In Denmark the Public Administration Act and the data protection legislation lay down rules on the cases in which information can be passed on between authorities and the tax, customs and general administrative law may apply as well. 220 See Art. 3 OLAF Regulation above in this volume. Article 9 Procedural guarantees 278 Denmark II. Procedural Rules on Investigations of OLAF and the References to National Law As OLAF investigations can have elements of both national punitive, administrative and EU administrative law, and their findings may lead to criminal proceedings at the national level, fair proceedings that are compliant with procedural guarantees need to be installed and respected. 221 Hereby it is ensured that the acceptance of OLAF final reports as evidence in national courts is made stronger. Without adequate safeguards, courts may refuse to admit these reports, leading to inefficiencies and requiring national authorities to repeat investigative steps. 222 Bovend’Eerdt rightly points at the fact that there is a two-folded situation with regard to procedural guarantees: a) the rights established and codified by Art. 9 – Ligeti pointed out that these are de facto general Europeanised defence rights – must be respected in any OLAF investigation b) during on-the-spot checks OLAF must according to the “yield-rule” in Art. 3 para 3 respect as well national procedural rights (“in compliance with the rules and practices of the Member State concerned”). 223 Only in the absence of Europeanised defence rights, the national rights will apply and then then need to meet the requirements of the assimilation rule. Bovend’Eerdt 224 discusses the use of “will-dependent” evidence, such as a witness statement offered to an OLAF investigator as an example of an evidence gathering action of OLAF during onthe-spot checks, which is a good example for the present discussion of the applicable laws, which will now follow: 1. Article 9 Procedural guarantees […] 3. As soon as an investigation reveals that an official, other servant, member of an institution or body, head of office or agency, or staff member may be a person concerned, that official, other servant, member of an institution or body, head of office or agency, or staff member shall be informed to that effect, provided that this does not prejudice the conduct of the investigation or of any investigative proceedings falling within the remit of a national judicial authority. 4. […] In duly justified cases where necessary to preserve the confidentiality of the investigation or an ongoing or future criminal investigation by the EPPO or a national 221 See in-depth with further references only precisely Ligeti 2017, pp. 27 et seq. 222 Bovend’Eerdt 2024, pp. 140 et seq. 223 Ibid., p. 141. 224 Ibid., p. 144: “Is this an EU power or can OLAF only exercise these powers on the basis of the principle of assimilation? For the person concerned, even if he has familiarised himself with the ‘yield rule’, this is problematic. He must be able to know what it is that Union law regulates to get a sense of the role left to be played by national law. How can a person know the scope of his private sphere or how interferences therewith may take place if he cannot know whether it is Union or national law that applies in a specific instance?” 1 2 Article 10 Confidentiality and data protection EPPO/OLAF Compendium 279 judicial authority, the Director-General may, where appropriate after consulting the EPPO or the national judicial authority concerned, decide to defer the fulfilment of the obligation to invite the person concerned to comment. […] The Danish national judicial authorities are the courts within the country. The remit of the courts is determined by the Danish Act on Judicial Administration. The Danish Prosecution Service might be involved if OLAF investigates a conduct that could be criminal in nature. And the other judicial authorities: Director of Public Prosecutions/Attorney of General/Rigsadvokaten, The State Attorney for Special Economic and International Crime (SØIK) and the Danish Police. The reference to the EPPO in Art. 9 para 4 OLAF Regulation cannot be applicable in Denmark, as it does not participate in the mechanism. As the police investigates most cases prior to the referral to the Prosecution Service, the police might as well be an authority that should be consulted by OLAF. 2. Article 10 Confidentiality and data protection […] 3. The institutions, bodies, offices or agencies concerned shall ensure that the confidentiality of the investigations conducted by the Office is respected, together with the legitimate rights of the persons concerned, and, where judicial proceedings have been initiated, that all national rules applicable to such proceedings have been adhered to. […] The rules on confidentiality and data protection are regulated close to the provisions of control, audit and inspection in the same codes, which applied above for external investigations. The Danish Data Protection Act applies as well. It contains sections on the Data Protection Regulation. Restrictions on the rights of the data subject Section 22 The provisions of the Data Protection Regulation, Article 13, subsection 1–3, Article 14, subsection 1–4, Article 15 and Article 34 shall not apply where it is determined that the data subject’s interest in the information is subject to determining considerations of private interest, including consideration of the data subject himself. PCS. 2. exemption from the provisions of the Data Protection Regulation, Article 13, Subsection 1–3, Article 14, Subsection 1–4, Article 15 and Article 34 may also be implemented if it is determined that the data subject’s interest in knowing the information outweighs decisive public interest considerations, including in particular. 1) State security, 2) defence, 1 2 Article 12 Exchange of information between the Office and the competent authorities 286 Denmark b) Art. 12 para 2 OLAF Regulation (judicial authorities of the Member State concerned) Which are these national authorities? For all offences: - Director of Public Prosecutions/Attorney of General/Rigsadvokaten - The State Attorney for Special Economic and International Crime (SØIK) - Danish Police - Courts c) Art. 12 para 3 OLAF Regulation (Information to the Office by competent authorities of the Member State concerned) These are the authorities, which were presented under a) and b) above. They are obliged to fulfil the time-limit by virtue of Art. 12 para 3 OLAF Regulation. The right to withhold information (for a certain time) may result from provisions, which ensure the secrecy of an action under national law. 3 4 5 Article 12a Anti-fraud coordination services EPPO/OLAF Compendium 287 5. Article 12a Anti-fraud coordination services 1. Each Member State shall, for the purposes of this Regulation, designate a service (the ‘anti-fraud coordination service’) to facilitate effective cooperation and exchange of information, including information of an operational nature, with the Office. Where appropriate, in accordance with national law, the anti-fraud coordination service may be regarded as a competent authority for the purposes of this Regulation. […] a) General remarks aa. Definition and History Cooperation, Coordination and Facilitation are buzz words in anti-fraud literature. 227 Anti-fraud coordination services are known worldwide and exist in many international organisations and cooperate with nation states. 228 In the EU the term “AFCOS” has a very special meaning as it means the Anti-fraud coordination services created on behalf of the European Anti-fraud Office for the facilitation of interactions with the national Member States of the EU (see recitals below). 229 The obligation to designate these services runs and derives from primary Union law. Art. 325 TFEU (ex-Art. 280 TEC) requests the Union and the Member States to fight fraud (together). The history of these services, adapted to the financial and budgetary law sector and set-up in the Member States’ internal justice and financial systems dates to the early 2000s. 230 Historically, the coordinating bodies emerged primarily in the new Member States that were awaiting accession. The European Parliament has already in 2010 called for the AFCOS to be set up as independent bodies in the MS. Today one could not be further from this idea than ever, since the AFCOS are mostly subordinated deep in the structure of a Financial or 227 Kuhl 2019, pp. 160 et seq.; Wells 2014; Spink 2019; Saporta and Maraney 2022; FCPA 2012; ECA 2022; Malan and Bosch Chen 2022, pp. 135–139; focusing on the customs area van der Paal et al. 2019; de Vries 2022, pp. 401–463; House of Lords 2013, pp. 32 et seq. 228 Bartsiotas and Achamkulangare 2016; see World Customs Organisation, http://www.wcoomd.org/en/aboutus/partners/international_organisations.aspx. Accessed 31 December 2024; see UNDOC, https://www.unodc.org/unodc/en/corruption/COSP/session9-resolutions.html, focusing on the designation of anticorruption bodies. Accessed 31 December 2024. They exist even on national level and are especially common in federal state systems, see Austria, which was special “Betrugsbekämpfungskoordinator:innen”, https://www.bmf.gv.at/en/topics/combating-fraud/anti-fraudunits/anti-fraud-coordinators.html: “In each office there is an Anti-Fraud Coordinator (AFC; in German: Betrugsbekämpfungskoordinator, BBKO) for the individual sectors and regional customs units. They are members of the management and communicate in their function at management level and with each other. The AFC is the point of contact for all anti-fraud matters at the local level, within the department for other organisational units, as well as externally for institutions and public authorities. They also act as an information hub to the outside world, for example when it comes to external information exchange or cooperation with external institutions and authorities.” Accessed 31 December 2024. 229 Kuhl 2019, p. 164. 230 Quirke 2015, pp. 236 et seq. 1 Article 12a Anti-fraud coordination services 288 Denmark Treasury Department/Ministry, Financial Inspections Services of the Treasury Department/Ministry, the Department of Commerce, or the Ministry/Department of the Interior. The simplicity of the coordination from within a ministry and the size of the administrative apparatus certainly speak in favour of this, but the interconnectedness is also problematic from the point of view of efficiency (states with political goodwill coordinate very easily and others are politically manoeuvrable): “Friday 24 April 2009 Protection of the Communities’ financial interests and the fight against fraud – Annual Report 2007 P6_TA(2009)0315 European Parliament resolution of 24 April 2009 on the protection of the Communities’ financial interests and the fight against fraud – Annual Report 2007 (2008/2242(INI)) 2010/C 184 E/14 The European Parliament,” 68. points out that the Anti-Fraud Coordination Units (AFCOS) set up for OLAF in the Member States that joined the European Union after 2004 are very important sources of information and contact points for OLAF; points out, however, that the functional added value of these offices (in particular in terms of reporting irregularities to the Commission) is minimal as long as they are not independent from national administrations; therefore calls on the Commission to submit a proposal to Parliament’s competent committee on how the work of these offices could be made more useful and considers it necessary to improve cooperation with the candidate countries” 231 At least there is legal and technical oversight of the areas of administration in most states and nowadays the AFCOS are implemented at the highest level. 232 However, the existing Member States are also aware of weaknesses in the fight against fraud. Only since 2010 and in the last decade has more attention been paid to these coordination points. They have become a sine qua non in the EU’s fight against fraud and they are becoming more and more the “eyes and ears” of OLAF in the Member States. They only have their own investigative skills, which would make them an “extended arm” of OLAF in the Member States, if at all, e.g. in Bulgaria or Denmark. On the other hand, in Denmark and France, they are more active in the background and do 231 See OJ, 8 July 2010, CE 184/72; Freitag, 24. April 2009 Schutz der finanziellen Interessen der Gemeinschaften und Betrugsbekämpfung – Jahresbericht 2007 P6_TA(2009)0315 Entschließung des Europäischen Parlaments vom 24. April 2009 zu dem Schutz der finanziellen Interessen der Gemeinschaften und der Betrugsbekämpfung – Jahresbericht 2007 (2008/2242(INI)) 2010/C 184 E/14 Das Europäische Parlament, “68. weist darauf hin, dass die Stellen zur Koordinierung der Betrugsbekämpfung (AFCOS), die für OLAF in den Mitgliedstaaten eingerichtet wurden, die der Europäischen Union nach 2004 beigetreten sind, für OLAF sehr wichtige Informationsquellen und Kontaktpunkte sind; verweist jedoch darauf, dass der funktionale Mehrwert dieser Büros (insbesondere hinsichtlich der Meldung von Unregelmäßigkeiten an die Kommission) minimal ist, solange sie nicht von den nationalen Verwaltungen unabhängig sind; fordert die Kommission daher auf, dem zuständigen Ausschuss des Parlaments einen Vorschlag dahingehend vorzulegen, wie die Arbeit dieser Büros nutzbringender gestaltet werden könnte, und hält es für notwendig, die Zusammenarbeit mit den Kandidatenländern zu verbessern; [...].” 232 Byrne 2018, p. 13. 2 3 4 Article 12a Anti-fraud coordination services EPPO/OLAF Compendium 289 not appear too clearly. Activity reports may also have to be requested by the Commission, i.e. the responsible departments of OLAF. bb. Legislative developments The Commission has evaluated the impact of the AFCOS in the past decade. 233 Recent changes at the beginning of the 2020s have enlarged the competences of the AFCOS. These are now even allowed to cooperate with each other and not only with OLAF in Luxembourg alone, which was the case prior to the amendments of the Regulation (EU) 2020/2223. 234 The recent changes describe the role of the AFCOS in the recitals. Thus, by reading them the task and role of these bodies becomes vivid: (23) The Office is able, under Regulation (EU, Euratom) No 883/2013, to enter into administrative arrangements with competent authorities of Member States, such as anti-fraud coordination services, and institutions, bodies, offices and agencies, in order to specify the arrangements for their cooperation under that Regulation, in particular concerning the transmission of information, the conduct of investigations and any follow-up action. (30) Due to the large diversity of national institutional frameworks, Member States should, on the basis of the principle of sincere cooperation, have the possibility to notify to the Office the authorities that are competent to take actions upon recommendations of the Office, as well as the authorities that need to be informed, such as for financial, statistical or monitoring purposes, for the performance of their relevant duties. Such authorities may include national anti-fraud coordination services. In accordance with the settled case-law of the CJEU, the Office recommendations included in its reports have no binding legal effects on such authorities of Member States or on institutions, bodies, offices and agencies. (37) The anti-fraud coordination services of Member States were introduced by Regulation (EU, Euratom) No 883/2013 to facilitate an effective cooperation and exchange 233 Commission Staff Working Document Evaluation of the application of Regulation (EU, EURATOM) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 Accompanying the document Commission report to the European Parliament and the Council., pp. 3, 12, 72. The Commission document was accompanied by a Report (called ICF Report 2017), which resulted from an external study: European Commission, European Anti-Fraud Office, Evaluation of the application of Regulation No 883/2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF): final report, Publications Office, 2017, https://data.europa.eu/doi/10.2784/281658. Accessed 31 December 2024. 234 See Art. 12a and Art. 12b of Regulation (EU, Euratom) 2020/2223 of the European Parliament and of the Council of 23 December 2020 amending Regulation (EU, Euratom) No 883/2013, as regards cooperation with the European Public Prosecutor’s Office and the effectiveness of the European Anti-Fraud Office investigations, OJ L 437, 28.12.2020. 5 6 Article 12a Anti-fraud coordination services 290 Denmark of information, including information of an operational nature, between the Office and Member States. The Commission evaluation report concluded that they have contributed positively to the work of the Office. The Commission evaluation report also identified the need to further clarify the role of those anti-fraud coordination services in order to ensure that the Office is provided with the necessary assistance to ensure that its investigations are effective, while leaving the organisation and powers of the anti-fraud coordination services to each Member State. In that regard, the anti-fraud coordination services should be able to provide or coordinate the necessary assistance to the Office to carry out its tasks effectively, before, during or at the end of an external or internal investigation. (40) It should be possible for the anti-fraud coordination services in the context of coordination activities to provide assistance to the Office, as well as for the anti-fraud coordination services to cooperate among themselves, in order to further reinforce the available mechanisms for cooperation in the fight against fraud. cc. Visualisation of old (prior to 2020) vs. new (since 2020) cooperation and role of the AFCOS Figure 6: Visualisation of the new cooperation by virtue of Regulation No. 883/2013 (as amended 2020/2223) 7 8 OLAF instructing AFCOS A AFCOS B AFCOS C Figure 5: Visualisation of the old cooperation by virtue of Regulation No. 883/2013 •OLAF instucting AFCOS Member State A interacting AFCOS Member State B interacting AFCOS Member State C interacting AFCOS Member State D interacting Article 12a Anti-fraud coordination services EPPO/OLAF Compendium 291 b) A closer look at the relevant AFCOS in the present Member State The Ministry of Finance is the contact point between OLAF and the competent authorities. It serves as the Danish AFCOS. 235 Within the Danish Ministry the 7th Division – Environment, food, climate, energy and EU Budget – is the competent department. The Ministry does not take part in the investigations, but connects the authorities and provides assistance in the exchange of information between OLAF and the relevant authorities. 236 The network of national authorities concerned in OLAF investigations are: 237 - The Danish Agency for Agriculture - The Danish Fisheries Agency - The Danish Business Authority - The Danish Tax and the Customs Agency - The State Attorney for Special Economic and International Crime (SØIK) [Article 12b–12d omitted] 235 Ministry of Finance, Manual of September 2021, Cooperation in the Danish anti-fraud network, p. 3. 236 Ibid. 237 Ibid. 9 10 Article 12e The Office’s support to the EPPO 292 Denmark 6. Article 12e The Office’s support to the EPPO 1. In the course of an investigation by the EPPO, and at the request of the EPPO in accordance with Article 101(3) of Regulation (EU) 2017/1939, the Office shall, in accordance with its mandate, support or complement the EPPO’s activity, in particular by: (a) providing information, analyses (including forensic analyses), expertise and operational support; (b) facilitating coordination of specific actions of the competent national administrative authorities and bodies of the Union; […] The competent national administrative authorities are the - Danish Business Authority, - Danish Agency for Agriculture, National Board of Agriculture, - Danish Fisheries Agency and - Danish Customs and Tax Agency. The support to the EPPO by OLAF concerning information related to Denmark might be possible via the established network by the Danish AFCOS and the authorities that are national partners of OLAF in Denmark. Further support to the EPPO is not possible as Denmark is not a participating member of the EPPO mechanism. [Article 12f–g omitted] 1 2 3 Article 13 Cooperation of the Office with Eurojust and Europol EPPO/OLAF Compendium 293 7. Article 13 Cooperation of the Office with Eurojust and Europol 1. […] Where this may support and strengthen coordination and cooperation between national investigating and prosecuting authorities, or where the Office has forwarded to the competent authorities of the Member States information giving grounds for suspecting the existence of fraud, corruption or any other illegal activity affecting the financial interests of the Union in the form of serious crime, it shall transmit relevant information to Eurojust, within the mandate of Eurojust. […] The relevant act for the cooperation of Danish authorities with Eurojust has been explored at the beginning of the volume. Th national investigating and prosecuting authorities are the following nevertheless: - Director of Public Prosecutions/Attorney of General/Rigsadvokaten - The State Attorney for Special Economic and International Crime (SØIK) - Danish Police [Article 14−16 omitted] Article 17 Director-General 294 Denmark 8. Article 17 Director-General 4. The Director-General shall report regularly, and at least annually, to the European Parliament, to the Council, to the Commission and to the Court of Auditors on the findings of investigations carried out by the Office, the action taken and the problems encountered, whilst respecting the confidentiality of the investigations, the legitimate rights of the persons concerned and of informants, and, where appropriate, national law applicable to judicial proceedings. Those reports shall also include an assessment of the actions taken by the competent authorities of Member States and the institutions, bodies, offices and agencies, following reports and recommendations drawn up by the Office. 7. The Director-General shall put in place an internal advisory and control procedure, including a legality check, relating, inter alia, to the respect of procedural guarantees and fundamental rights of the persons concerned and of the national law of the Member States concerned, with particular reference to Article 11(2). The legality check shall be carried out by Office staff who are experts in law and investigative procedures. Their opinion shall be annexed to the final investigation report. Article 17 contains provisions regarding the office’s reporting obligations and the safeguarding of procedural guarantees in the course of its investigations. Paras 4 and 7, in particular, – this is the telos – underline OLAF’s efforts to balance effective investigative action with the protection of fundamental rights. The Supervisory Committee noted that OLAF’s country mini-profiles provided some information on national laws but were insufficient for compensating occasional expertise issues. 238 They also reviewed OLAF’s legality check procedures, recognizing the importance of expertise in all EU Member States’ legal systems. Good relations between investigators and reviewers were seen to positively impact the quality of checks and reviews. OLAF’s legality check ensures compliance with legal rules and addresses any breaches swiftly. The check focuses on procedural aspects and may lead to modifications or abandonment of actions if it fails. The committee emphasized the importance of compliance with rights and procedural rules in promoting the rights of those affected. Article 17 para 4 specifies that the OLAF Director-General is required to report regularly and at least annually, to major EU IBOA. The reports should cover the findings of OLAF’s investigations, the actions taken and any problems encountered during them. Importantly, these reports must respect the confidentiality of investigations and the legitimate rights of individuals involved, including informants. The provision also requires OLAF to consider national laws applicable to judicial proceedings. 238 Supervisory Committee 2015, Legality check and review in OLAF, pp. 6 et seq. 1 2 3 Article 17 Director-General EPPO/OLAF Compendium 295 Next, Article 17 para 7 further emphasizes procedural guarantees and compliance with fundamental rights. It mandates the establishment of an internal advisory and control procedure, including a legality check, which OLAF did in the past. The legality check should be carried out by OLAF staff who are experts in law and investigative procedures and focus on the procedural safeguards. This internal control mechanism is relevant for ensuring that national laws are respected. The opinion resulting from this check should then be annexed to the final investigation report, thereby providing transparency and accountability for the decisions made throughout the investigative process. As noted in an article by Mavromati and Riochet it is recalled that this check was introduced as a new internal advisory and control procedure in the past. 239 This change, unlike its predecessor (Regulation 1073/1999), was designed to include an internal legality check that assesses, among other things, the respect for procedural guarantees and the fundamental rights of individuals under investigation. This internal process is vital for ensuring that OLAF’s actions remain compliant with both EU and national standards, e.g. for upholding the rule of law and protecting the rights of individuals. Moreover, the importance of these procedural safeguards has been by the ECL C-787/22, which related to the respect for the rights of defence and procedural guarantees during OLAF’s investigations were at the centre of the dispute. 240 It was reiterated the need for OLAF to operate in a manner that respects fundamental rights, including the right to be heard and the right to avoid self-incrimination. [Article 18−21 omitted] 239 Mavromati and Riochet 2024, p. 319. 240 ECJ, Case C-787/22 P, Sistem ecologica production v EU Commission, Judgment of 30 November 2023, ECLI:EU:C:2023:940. 4 5 6 Bibliography and Further Reading 302 Denmark Quirke B (2015) EU fraud and new member states – a success story. 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In: Vervaele J, Tosza S (eds) Combatting Illicit Trade in Tobacco Products In Search of Optimal Enforcement. Springer, Heidelberg/Berlin, pp 401–463. Bibliography and Further Reading EPPO/OLAF Compendium 303 Wells J T (2014) Principles of Fraud Examination. 4th edn. Wiley, Hoboken, New Jersey. Zajac K (2025) The Admissibility of Tainted Evidence in Criminal Proceedings as a Rule of Law Issue Under the ECHR. Criminal Law Forum. https://doi.org/ 10.1007/s10609-024-09496-w. Accessed 2 February 2025. General Literature OLAF de Bellis M (2021) Multi-level Administration, Inspections and Fundamental Rights: Is Judicial Protection Full and Effective? German Law Journal 22:416–440. Bovend’Eerdt K (2018) The Applicable Law in OLAF’s On-The-Spot Inspections, European Law Blog. online: https://research-portal.uu.nl/en/publications/the-applicable-law-in-olafs-on-the-spot-inspections. Accessed 31 December 2024. Bovend’Eerdt K (2024) The Protection of Fundamental Rights in OLAF Composite Enforcement Procedures. Springer, Cham. Brüner F H (2008) OLAF-Reform II – Kosmetischer Eingriff oder Großer Wurf? EuR, pp 859–872. Brüner F H (2009) OLAF Manual Operational Procedures. EU Publications Office, Brüssel. Brüner F H (2011) Das Europäische Amt für Betrugsbekämpfung (OLAF) und seine Aufgaben bei der Erweiterung der Europäischen Union. In: Henke R (ed) Erweiterung der europäischen Union: Zusammenarbeit von Wirtschaft und Verwaltung, Köln, pp 17–26. Carrera S, Mitsilegas V, Stefan M (2021) Criminal Justice, Fundamental Rights and the Rule of Law in the Digital Age, Centre for European Policy Studies (CEPS) Brussels. online: https://www.ceps.eu/wp-content/uploads/2021/05/Criminal-JusticeFundamental-Rights-and-the-Rule-of-law-in-the-Digital-Age.pdf. Accessed 31 December 2024. EU Agency for Fundamental Rights (FRA) (2016) Rights of suspected and accused persons across the EU: translation, interpretation and information. Luxembourg Publication office of the European Union. online: https://fra.europa.eu/sites/default/ files/fra_uploads/fra-2016-right-to-information-translation_en.pdf. Accessed 31 December 2024. Bibliography and Further Reading 304 Denmark EU Commission (DG Policy, U 2) (2015) Handbook, The role of Member States’ auditors in fraud prevention and detection for EU Structural and Investment Funds Experience and practice in the Member States. EU Commission (DG regional Policy) (2009) Information Note on Fraud Indicators for ERDF, ESF. online: https://www.tremirs.com/wp-content/uploads/documentos/ antifraude/06_Comision_Europea_Information_Note_on_Fraud_Indicators_for_ ERDF_ESF_and_CF.pdf. Accessed 31 December 2024. EU Commission (OLAF) (2011) Compendium of Anonymised Cases Structural Actions, Brussels. online: https://www.italy-albania-montenegro.eu/sites/default/ files/2023-01/05_OLAF_Compendium_of_anonymised_cases_2011.pdf. Accessed 31 December 2024. EU Commission (OLAF) (2013) Detection of forged documents in the field of structural actions A practical guide for managing authorities elaborated by a group of Member States’ experts coordinated by OLAF’s unit D2 – Fraud Prevention. online: https://sfc.ec.europa.eu/system/files/documents/sfc-files/2013-11-12-final-guideforged-documents-en.pdf. Accessed 31 December 2024. EU Commission (OLAF) (2016) Guidelines on Digital Forensic Procedures for OLAF Staff, 15 February 2016. online: https://anti-fraud.ec.europa.eu/system/files/202107/guidelines_en_bb84583638.pdf. See all Translations: https://anti-fraud.ec.europa.eu/guidelines-investigations-olaf-staff_en. Both accessed 31 December 2024. EU Commission (OLAF) (2017) Fraud in Public Procurement A collection of Red Flags and Best Practices, Ref. Ares(2017)6254403. online: https://www.esfondi.lv/ en/regulatory-enactments-and-documents/2014-2020-planning-period/fraud-inpublic-procurement-a-collection-of-red-flags-and-best-practices. Accessed 31 December 2024. EU Commission (OLAF) (2018) Digest of rulings of the Court of Justice of the European Union with relevance to OLAF. EU Commission (OLAF) (2021) Guidelines on Investigation Procedures for OLAF Staff, 6 October 2021. online: https://anti-fraud.ec.europa.eu/system/files/202110/gip_2021_en.pdf. Accessed 31 December 2024. 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EU Commission (OLAF) (2022c) Report From The Commission To The Council And The European Parliament, 33rd Annual Report on the protection of the European Union’s financial interests and the fight against fraud – 2021, Brussels, 23 September 2022, COM(2022) 482 final. European Court of Auditors (ECA) (2019a) Delivering performance in Cohesion, Briefing Paper, June 2019, EU Publications Office, Luxembourg. online: https://www.eca.europa.eu/Lists/ECADocuments/BRP_Performance_orientation _in_Cohesion/BRP_Performance_orientation_in_Cohesion_EN.pdf. European Court of Auditors (ECA) (2019b) online: https://www.eca.europa.eu/lists/ ecadocuments/sr19_01/sr_fraud_risks_en.pdf. Accessed 31 December 2024. 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Bibliography and Further Reading 306 Denmark online: https://www.oecd.org/gov/ethics/prevention-fraud-corruption-europeanfunds.pdf. Accessed 31 December 2024. OLAF (2021) Guidelines on Data Protection for Investigative Activities, Ref(Ares) 2021, 7266396 – 25 November 2021. online: https://anti-fraud.ec.europa.eu/system/files/2021-12/guidelines_dp_investigative_activities_en.pdf. Accessed 31 December 2024. OLAF (2022) The OLAF Report 2021. Publications Office of the European Union, Luxembourg. Salzano L (2022) The Secretiveness over the OLAF Report on Frontex Investigations: Rule of Law Fading into Arbitrariness? VerfBlog, 9 September 2022. online: https://verfassungsblog.de/the-secretiveness-over-the-olaf-report-on-frontex-inve stigations/, DOI: 10.17176/20220909-110344-0. Accessed 31 December 2024. Supervisory Committee of OLAF (2015) Opinion No 2/2015, Legality check and review in OLAF. Luxembourg. online: https://supervisory-committeeolaf.europa.eu/supervisory-committee-olaf/opinions-and-reports_en. Accessed 31 December 2024. Supervisory Committee of OLAF (2017a) Annual Activity Report 2016, 23 May. online: https://supervisory-committee-olaf.europa.eu/document/download/bff6a4f7-0319 -4abd-ac5f-f037d735df5f_en?filename=scaar_2016_-_finalannex.pdf_0_1.pdf. Accessed 31 December 2024. Supervisory Committee of OLAF (2017b) Opinion No 2/2017 – Accompanying the Commission Evaluation report on the application of Regulation (EU) No 883/2013 (Article 19), 29 September. online: https://supervisory-committee-olaf.europa.eu/document/download/d161134b-fae2-49b0-9eb4-54cb7ddb87de_en?filena me=opinion_2_2017.pdf. Accessed 31 December 2024. 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Accessed 31 December 2024. Supervisory Committee of OLAF (2024a) Annual Activity Report 2023, 10 July, online: https://supervisory-committee-olaf.europa.eu/document/download/61f6b4be-9f3 8-4b4f-a481-16841dca2515_en?filename=SCAR%202023.pdf. Accessed 31 December 2024. [Document text truncated for crawler view.]