In order to comply with the ne bis in idem principle, the Belgian legislator has, once again, attempted to coordinate the criminal and administrative enforcement mechanisms in tax matters. Although such initiatives were necessary in the light of the case law of the Constitutional Court, the Court of Justice of the European Union and the European Court of Human Rights, their practical implementation by the new legislation unfortunately gives rise to serious conceptual and practical objections.
The ne bis in idem principle (also known as "double jeopardy") prevents a person from being prosecuted or punished twice for the same acts. In 2012, the legislator had already made an attempt to comply with this principle by introducing the Una Via principle in Belgian legislation through an Act of 20 September 2012 (the "Una Via Act"). The Una Via principle encourages the authorities to make a choice between criminal or administrative handling when dealing with (tax) infringements. The Constitutional Court has, however, partially annulled the Una Via Act because it did not go far enough in terms of protection against double punishment.
In addition, the European Court of Human Rights (ECtHR) has clarified in its recent case law that the ne bis in idem principle does not oppose parallel criminal and administrative proceedings, insofar as they form a "coherent whole". The proceedings are sufficiently closely connected in substance and time if (i) both proceedings are part of an integrated scheme, which (ii) addresses different aspects of the social misconduct, and (iii) is foreseeable, and (iv) proportionate for the persons affected (ECtHR 15 November 2016, A&B v. Norway). The Court of Justice has also recently handed down several relevant judgments in which the aforementioned principle is given similar scope and possibility of restriction.
As a result of these developments, the Belgian legislator has once again tried to better coordinate the criminal and administrative enforcement mechanisms in fiscalibus through far-reaching integration. This was done by the Act of 5 May 2019 containing various provisions on criminal matters and worship and amending the Act of 28 May 2002 on euthanasia and the Social Penal Code (hereinafter the "Act"). The main areas addressed of this Act, which unfortunately raises more questions than it provides workable solutions, are outlined below.
Consultation and access
Additional formalisation and integration into the Code of Criminal Procedure ("CCP")
The tax administration was already able to report tax crimes to the Public Prosecutor before the adoption of the Act. In order to do so, tax officials needed the authorisation of the competent Advisor-General. In addition, the Advisor-General or the tax officer appointed for this purpose and the Public Prosecutor could discuss specific cases.
The legislator has further formalised this consultation.
The reporting of tax offences by tax officials to the Public Prosecutor still requires prior authorisation from the competent Advisor-General. However, this provision is extended to the competent officials of regional or local tax administrations, so that these actors also need the prior authorisation of their competent hierarchy (article 29, §2 CCP).
The (optional) Una Via consultation between the competent Advisor-General or the official appointed by him/her and the Public Prosecutor, provided for in the former article 29, §3 CPP, is also thoroughly reformed and supplemented. Thus, the new article 29, §3 CPP imposes a reporting obligation on the competent Advisor-General (or the official designated by him/her), as well as on the officials in charge of regional or local taxation. As soon as the tax investigation reveals evidence of serious tax fraud, whether or not organised, they will be required to inform the Public Prosecutor as of the date of entry into force of the Act. The tax investigation does not have to be completed at that time. The legislator's objective is to allow the tax administration to deal with simple tax fraud itself.
Within a month from receipt of such notification of alleged serious tax fraud, the Public Prosecutor will consult with the competent tax officials. The competent police services may be invited to these consultations. Within three months of the notification, the Public Prosecutor must decide for which facts (described in terms of time and space) he will (not) pursue the criminal proceedings. However, the Act does not introduce any explicit sanction of inadmissibility of the criminal proceedings in the event that this time limit is exceeded.
The new reporting obligation of the competent tax officials seems to be reserved for cases of serious tax fraud.
A strict reading of the Act seems to suggest that tax officials can no longer report cases of "simple" tax fraud to the Public Prosecutor (unless they have authorisation from the competent Advisor-General) and that, in principle, no Una Via consultation is possible for cases of simple tax fraud either.
In addition, the Attorney General responsible for economic, financial and tax crime, the tax authorities and the federal police will hold strategic consultations twice a year on mechanisms of serious or organised tax fraud.
Concept of "serious tax fraud"
The Constitutional Court has already ruled that the concept of serious tax fraud is sufficient in itself and requires no further clarification.
However, by means of the Act, the legislator authorises the King to determine by Royal Decree what distinguishes serious tax fraud from ordinary tax fraud. The preparatory documents for the Act already provide some insight into the scope of the concept. The following types of offences would be targeted: offences characterised by their serious and organised nature; offences for which there are serious indications that they are related to common law offences with a serious financial, economic, tax or social component or serious elements of corruption; facts for which the investigative acts require a coercive measure, as well as facts for which there are serious indications that they serve to finance a terrorist group or criminal organisation. Such broad scope may, in practice, lead to a very large number of facts being classed as serious. Moreover, it is unclear how the coercive measures that the investigation entails will or can play a role in this classification, as this would imply that the prosecuting party can, on its own initiative, determine the seriousness and thus the classification. Indeed, if a Public Prosecutor were to judge in a case of non-serious tax fraud that, among other things, (house) searches are necessary, the preparatory documents for the Act seem to suggest that the case comes within the scope of serious tax fraud.
The reporting duty of the Public Prosecutor to the Minister of Finance
A reporting obligation for the Public Prosecutor vis-à-vis the Minister of Finance is also included in the Code of Criminal Procedure. The Public Prosecutor is required to inform the Minister of Finance or the department designated by the Minister (CAF – service for anti-fraud coordination) if an investigation by the prosecutor or a judicial investigation reveals indications of tax fraud concerning direct or indirect taxes (article 29bis CPP). In addition, access to and a copy of the criminal case file must be provided, unless this would endanger the criminal investigation. The question can be raised as to whether the Public Prosecutor can waive his reporting duty if reporting could jeopardise the criminal investigation, or whether his reporting obligation then remains unaffected whereas he can only refuse access to the file and refuse to provide a copy of it .
Coherent in terms of time and content
If no Una Via consultation has taken place, both the Public Prosecutor's Office and the tax administration can proceed to prosecution and punishment. The Act explicitly states that the imposition of taxes, including surcharges, tax increases, administrative fines and tax fines, does not prevent the use of criminal enforcement. In order for this to be admissible, the tax and criminal proceedings must be sufficiently closely connected in substance and time. This wording is to a large extent inspired by the A&B v. Norway judgment of the ECtHR. Thus, the Act does not provide new solutions to the issue of parallel administrative and criminal prosecutions, even though this was the legislator's intention.
Integration of the tax litigation into criminal proceedings
If the Public Prosecutor's Office decides to prosecute tax offences, the criminal court will take note of the tax authorities' civil claim for payment of the taxes, surcharges, tax increases, administrative and tax fines and accessories which are due (article 4bis of the Preliminary Title of the CPP).
The tax administration then acts in the criminal proceedings as an intervening third party with an independent claim. If the tax administration's claim is already pending before the civil court, this claim will be terminated and continued before the criminal court.
It is remarkable and even frightening that the criminal court remains the competent court with regard to the (civil) tax claim, even in the event of an acquittal in respect of the tax offences. In complex tax disputes, the file is thus taken away from the judge who is most suited to decide on them.
Moreover, the final decision of the criminal court will give the tax administration an enforceable title to recover the taxes due, even if no crime is established.
The wording of this provision is very ambiguous. On the one hand, it can be interpreted to mean that the criminal court will automatically take note of the tax administration's claim, even if the tax administration has not constituted itself as a civil party before the criminal court. This automatic transfer gives rise to fundamental objections, since the criminal court will have to take over the tax inspector's role if a tax assessment has not yet been established. On the other hand, this rule can be interpreted as meaning that the criminal court can only rule on the civil action if the tax administration decides to become a civil party, a possibility which is offered to the administration by an earlier act of 26 March 2018. If the tax administration does not decide to become a civil party, the tax dispute will then continue to follow the usual track, with first an administrative phase and then, if necessary, a phase before the civil tax court.
Although the legislator's intention to integrate and improve the effectiveness of tax and criminal law enforcement in fiscalibus is to be welcomed, some critical questions arise:
- Are the tax assessment periods (partially) set aside? Will the criminal court, in order to assess the admissibility of the tax authorities' civil claim, take the tax assessment periods into account?
- Does the criminal court have the necessary expertise to rule on complex tax matters? For this reason, it is necessary to add a judge with tax expertise to the competent criminal chambers. In that regard, it is problematic that only 13 courts of first instance are competent for tax disputes, whereas, taking into account the sections of the courts of first instance, there are 27 correctional courts of first instance. Consequently, tax expertise cannot be present everywhere.
- Does this integration into the criminal proceedings lead to a circumvention of the basic tax principles and procedural guarantees?
- The taxpayer is taken away from the civil (natural) court by the mere decision of the tax administration to launch a civil action in the criminal proceedings. Is this compatible with article 13 of the Constitution, which provides protection against arbitrariness of the executive power?
- What happens if, after a lost trial at first instance before the (civil) tax court, the administration chooses to become a civil party before the criminal court?
- What if the tax case is already being dealt with on appeal or in a cassation procedure and the administration decides to go to the criminal court after all?
- Does the judgment of the civil first instance or appeal court have res judicata before the criminal court?
Disproportionate punishment: application of an offsetting mechanism
Fines and tax increases
In addition, because of recent European case law, the legislator introduced an offsetting mechanism in several tax codes. This principle obliges the criminal court to take into account the determination of the administrative fines and tax increases due, so that the offender is not subjected to an unreasonably heavy penalty. Although this is a noble objective, the legislation provides no support as to the concrete application of this principle.
These tax codes also contain a provision according to which the confiscation of proceeds obtained from crime (article 42, 3° of the Criminal Code) does not apply to the assets obtained directly from tax crime, the assets and the value of the goods that were substituted for them or the income from invested benefits, in the event that the claim of the tax administration is declared well-founded and has led to an actual payment of this "full claim".
The concept of a "full claim" is given a dual interpretation in the preparatory documents for the Act: it can include the principal tax, or the tax and the fines and/or tax increases. First of all, it is unclear how the aforementioned condition can be met in practice, since the criminal court generally first examines the criminal law aspects and only then the civil claim. The criminal court will therefore always have to postpone the verdict on the confiscation and give the defendant the opportunity to first execute the civil conviction pronounced by the same criminal judge and thus to pay the tax. To the extent that this tax claim relates not only to the evaded tax but also to the tax fines and/or tax increases, the taxpayer will often pay a high price in order to escape this confiscation. After all, the taxpayer will have to renounce the sum of money. One may then wonder whether the taxpayer really does escape the confiscation completely. Moreover, according to the preparatory documents, the confiscation can still be ordered with regard to assets related to non-tax offences when the criminal court is seised for tax and non-tax offences. To the extent that a taxpayer is prosecuted for tax fraud as well as, for example, for the second and third money-laundering offences, the risk of confiscation of the object of one of these money-laundering offences cannot be excluded.
Entry into force
The new provisions will enter into force on the date set by Royal Decree and at the latest on 1 January 2020. Article 4bis of the Preliminary Title of the CPP applies to civil actions brought as of that date.
The legislator has undoubtedly pursued a noble objective, namely to better coordinate the criminal and administrative enforcement mechanisms in fiscalibus, taking into account case law developments at the European level.
Unfortunately, this objective has been translated into an Act which raises both conceptual and practical objections in many areas – which in no way enhances legal certainty.