Professional Documents
Culture Documents
Ebook Combatting Illicit Trade in Tobacco Products in Search of Optimal Enforcement Stanislaw Tosza Online PDF All Chapter
Ebook Combatting Illicit Trade in Tobacco Products in Search of Optimal Enforcement Stanislaw Tosza Online PDF All Chapter
https://ebookmeta.com/product/around-the-world-in-80-days-dona-
rice/
https://ebookmeta.com/product/in-search-of-returns-2nd-edition-
john-looby/
https://ebookmeta.com/product/in-search-of-the-romans-second-
edition-james-renshaw/
https://ebookmeta.com/product/progress-in-the-chemistry-of-
organic-natural-products-104/
Series and products in the development of mathematics 2
Series and products in the development of mathematics
Volume 2 Second Edition Ranjan Roy
https://ebookmeta.com/product/series-and-products-in-the-
development-of-mathematics-2-series-and-products-in-the-
development-of-mathematics-volume-2-second-edition-ranjan-roy/
https://ebookmeta.com/product/innovative-strategies-in-teaching-
nursing-exemplars-of-optimal-learning-outcomes-1st-edition/
https://ebookmeta.com/product/studies-in-law-politics-and-
society-volume-85-1st-edition-austin-sarat-editor/
https://ebookmeta.com/product/wild-and-free-in-search-of-his-
vocation-sounak-chatterjee/
https://ebookmeta.com/product/in-search-of-lost-futures-1st-
edition-magdalena-kazubowski-houston/
Stanisław Tosza
John A. E. Vervaele Editors
Combatting
Illicit Trade
in Tobacco
Products
In Search of Optimal Enforcement
Combatting Illicit Trade in Tobacco Products
Stanisław Tosza • John A. E. Vervaele
Editors
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland
AG 2022
This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether
the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of
illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and
transmission or information storage and retrieval, electronic adaptation, computer software, or by
similar or dissimilar methodology now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication
does not imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.
The publisher, the authors, and the editors are safe to assume that the advice and information in this
book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or
the editors give a warranty, expressed or implied, with respect to the material contained herein or for any
errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional
claims in published maps and institutional affiliations.
This Springer imprint is published by the registered company Springer Nature Switzerland AG.
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Stanisław Tosza and John A. E. Vervaele
2 Combatting Illicit Trade in Tobacco Products: Comparative
Analysis of Law and Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Stanisław Tosza
3 Smoke and Mirrors: Empirical Research into the Illegal Trade
in Tobacco Products in Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Brenda Oude Breuil, Dina Siegel, and Daan van Uhm
4 Enforcement of Policies Against Illicit Trade in Tobacco
Products in Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Vanessa Franssen and Ana Laura Claes
5 Enforcement of Policies Against Illicit Trade in Tobacco
Products in Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
Martin Böse and David Kober
6 Enforcement of Policies Against the Illicit Trade in Tobacco
Products in Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
Alessandro Bernardi, Valentina Felisatti, and Anna Francesca Masiero
7 Enforcement of Policies Against Illicit Trade in Tobacco
Products in Latvia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
Peter Gjørtler and Laura Grava
8 Enforcement of Policies Against Illicit Trade in Tobacco
Products in the Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Aart J. de Vries
9 Enforcement of Policies Against Illicit Trade in Tobacco
Products in Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465
Witold Zontek
v
vi Contents
List of Contributors
vii
viii Editors and Contributors
Abstract This chapter provides the introduction to the book. It sets out the context
of the topic and explains the research presented in this book, the relevant legal
framework and institutional actors as well as the methodology of the research. The
chapter explains the structure of the book and provides brief summaries of each
chapter.
1
Oude Breuil et al. (this volume), Sect. 3.2.5.
S. Tosza (*)
Faculty of Law, Economics and Finance, University of Luxembourg, Luxembourg,
Luxembourg
e-mail: stanislaw.tosza@uni.lu
J. A. E. Vervaele
Faculty of Law, Economics and Governance, RENFORCE, University of Utrecht, Utrecht,
The Netherlands
e-mail: J.A.E.Vervaele@uu.nl
smuggled into and within the EU have decreased during the last few years. Many
specialised criminal networks have set up highly flexible smuggling patterns and
local production units and offer what the local black markets are demanding. Some
of them also invest in advanced technology and/or are very active in the digital
markets.
ITTP does not only have repercussions in the form of losses to the state and EU
budget. By offering cheap cigarettes, it fundamentally undermines health policies
oriented towards gradually diminishing the smoking population and exposure to
tobacco smoke through limiting the availability of tobacco products. Furthermore,
this relatively low-risk activity presents an excellent source of income for organised
criminal groups and fuels further crime.
At the same time enforcement efforts against ITTP are insufficient. Relatively few
cases relating to the illicit tobacco trade are detected—and thereby subsequently
prosecuted and/or sanctioned—in the European Union.2 So far, the EU legislator has
focused on the regulation of the licit market (recently with Directive 2014/40/EU of
3 April 2014 on the approximation of laws, regulations and administrative pro-
visions of the Member States concerning the manufacture, presentation and sale of
tobacco and related products). The EU Anti-Fraud Office (OLAF) plays an impor-
tant role in enforcement, namely by coordinating or conducting administrative
investigations throughout the EU. However, OLAF does not have the capacity to
investigate all cases of illicit tobacco trade in the EU and most of them are dealt with
at the national level. Furthermore, OLAF’s powers are limited: on the one hand, it is
often the case that OLAF cannot use autonomous investigative powers, but depends
on cooperation with national authorities; on the other hand, OLAF does not have
judicial investigative powers or administrative sanctioning powers at all. OLAF’s
investigations conclude with a report that is transmitted to the national authorities,
which undertake actions and sanctions that they consider appropriate.3
Two key international instruments set the regulatory and enforcement standard as
regards the tobacco market. As for the regulatory standard, the WHO Framework
Convention on Tobacco Control provides rules aimed at lowering the demand for
and the supply of tobacco products.4 It has a widespread global impact as the
countries which are parties to that Convention represent more than 90% of the
world population.5 The enforcement standard is set by the Protocol to that Conven-
tion (Protocol to Eliminate Illicit Trade in Tobacco Products), which entered into
force on 25 September 2018. The Protocol provides for a set of rules relating to
2
This will become clear in the research presented in this book, see Chaps. 2–9. See also: EU
Commission, ‘Stepping up the fight against cigarette smuggling and other forms of illicit trade in
tobacco products - A comprehensive EU Strategy’ (Communication) COM (2013) 324 final, 11–16;
Gruszczynski (2013), p. 96.
3
Luchtman et al. (2019) and Vervaele (2019).
4
WHO (World Health Organization) Framework Convention on Tobacco Control (FCTC) adopted
on 21 May 2003.
5
Parties to the WHO (World Health Organization) Framework Convention on Tobacco Control
(FCTC) www.who.int/fctc/cop/en, accessed 29 April 2021.
1 Introduction 3
supply chain control, as well as a list of unlawful forms of conduct which should be
addressed by State Parties (although not necessarily by means of criminal law),
procedural rules on investigation and international cooperation. This is of key
importance as it sets the enforcement standard at the national level. However, the
parties to that Protocol are much less numerous: only 62 State Parties at the time of
writing.6 One of the so far unanswered questions is to what extent this Protocol is
and will enhance enforcement against the ITTP at the national level and further
international cooperation in combating that phenomenon. However, it is still too
early to assess its full impact, as many countries have only very recently become
parties to the Protocol and have adapted their laws accordingly (e.g. the Netherlands
only in 2020). However, it already plays an important role in shaping national
enforcement and it is against this background that the research presented in this
book is set.
The foremost objective of this book, which has resulted from a 3-year research
project, is to understand the current state of ITTP, its modalities and factors con-
tributing to ITTP as well as to examine the enforcement of measures to prevent this
phenomenon. The aim of this book is to contribute to a reflection on the enforcement
of measures to prevent the illicit tobacco trade in the EU, with a particular focus—
but not limited to—smuggling from Russia, Belarus, and Ukraine. In order to
achieve these aims it is necessary to understand not only the underlying legal
framework, but also the modus operandi of criminal organisations engaged in
ITTP and the practice of enforcement authorities combating it in order to identify
obstacles to effective and optimal enforcement, and to provide recommendations on
how to overcome them.
The objectives of this research can be phrased as questions to which this book
intends to provide answers: How is the illegal tobacco trade in Europe organised?
How do national authorities enforce the prohibition of illicit tobacco trade, taking
into account their international and EU obligations? How does law enforcement
praxis in different EU countries impact on this trade? How can that praxis be
improved to address the illicit tobacco trade? How can the EU influence third states’
policies to diminish the smuggling of illicit tobacco products into the EU?
In order to provide answers to these questions, which is done in the ten chapters
constituting this book, a variety of methods have been applied: legal comparative,
qualitative and quantitative criminological research as well as policy analysis.
Besides a legal analysis (‘law in the books’), a key part of that research were
interviews with law enforcement authorities in order to study how the law is applied,
and what the factors behind enforcement gaps are (‘law in action’).
The book will start with a chapter which synthesises and draws conclusions from
the research undertaken in the framework of this study and critically examines its
results (Chap. 2). This chapter builds on the criminological research and presents the
results of a comparative analysis of the trends in the legal design and practical
6
The list of State Parties, https://treaties.un.org/Pages/ViewDetails.aspx?src¼TREATY&mtdsg_
no¼IX-4-a&chapter¼9&clang¼_en, accessed 29 April 2021.
4 S. Tosza and J. A. E. Vervaele
than €100 million in recent years.7 As will be demonstrated, these countries have
different approaches to enforcement mechanisms with different roles being played
by administrative and criminal authorities, and with agencies combining both func-
tions. This selection will offer the reader a panorama of problems and solutions
providing a good representation of ITTP-related issues in the EU.
This examination of national systems is complemented by an analysis of the illicit
tobacco market and its prevention in the U.S. This country is one of the biggest
producers of tobacco worldwide with a significant internal smuggling problem
resulting from important differences in prices between different states. Besides this
challenge, the U.S. situation is also characterised by numerous different agencies at
different levels (both state and federal) with potentially overlapping competencies,
resulting in a rather patchy enforcement strategy (Chap. 10).
Thirdly, an examination of EU policies towards Eastern neighbours has been
conducted. As already mentioned, a significant proportion of the production of ITTP,
subsequently smuggled into the EU, takes place in countries such as Ukraine,
Belarus or Moldova. Hence, the last chapter of the book will study and scrutinise
policies which aim to curb this production by enhancing enforcement efforts that are
already in place in these countries (Chap. 11).
The objective of this research is to provide valuable input for a policy assessment
by the EU and the Member States of the enforcement of measures to prevent ITTP
and to provide inspiration for further questions in this field: How can administrative
and criminal enforcement be improved, taking into account the important health and
tax issues at stake? What must be done to elaborate an EU-wide comprehensive
enforcement policy aiming at countering and dismantling the organised criminal
networks in the field and thus going beyond national tax enforcement efforts?
Should the European Public Prosecutor’s Office, which just started on 1 June
2021, in cooperation with European enforcement agencies, like Europol and
Eurojust, and the national enforcement communities establish a new strategy for
combating ITTP? Should the countering of ITTP become an integral part of
European integrated border management by Frontex?
This research would not have been possible without institutional support from
Utrecht University and the hard work of members of the research team. We would
like to thank Utrecht University for its financial and structural support. The research
for and the preparation of this book have been done with no support from third
parties, including the tobacco industry itself; it was entirely financed by Utrecht
University.
We are extremely grateful for the dedication of the Utrecht University team
composed of the criminology section: Brenda Oude Breuil, Dina Siegel and Daan
van Uhm as well as Bart Berkhuysen and Melissa Prins who assisted them; and the
legal section: Machiko Kanetake, Aart de Vries, and Matija Kajić (who had already
greatly helped us as a student assistant and later joined the team). A big thank you is
extended to the experts who prepared the national chapters: Vanessa Franssen, Ana
7
Bundestag document No 19/17630, p. 11.
6 S. Tosza and J. A. E. Vervaele
Laura Claes, Martin Böse, David Kober, Alessandro Bernardi, Valentina Felisatti,
Anna Francesca Masiero, Peter Gjørtler, Laura Grava and Witold Zontek. They
tirelessly collected precious information, which was not always easily available in
the countries researched in this book. We also extend our gratitude to all national and
EU practitioners, policy makers and academics who kindly agreed to provide us with
a great deal of extremely valuable information.
We are also grateful to former members of the Utrecht team, in particular to
Michele Simonato, who had a crucial impact on the original design of this project, as
well as to invaluable student assistants: Dārta Mendziņa and Solveig Kreinsen. We
would also like to thank our English-language proofreaders and editors from
Springer.
References
Stanisław Tosza is Associate Professor in Compliance and Law Enforcement at the University of
Luxembourg, where he researches and teaches compliance law, comparative and European criminal
law, white-collar crime, and cyberlaw, and where he is also the co-director of the Bachelor program
in Law. He is the Secretary General of the AIDP (International Association of Penal Law).
John A.E. Vervaele is Professor in economic and European criminal law, as well co-director of the
Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE), at Utrecht University. In
Bruges he is Professor in European criminal law at the College of Europe. He has been the President
of the AIDP (International Association of Penal Law) since 2014.
Chapter 2
Combatting Illicit Trade in Tobacco
Products: Comparative Analysis of Law
and Practice
Stanisław Tosza
2.1 Introduction
S. Tosza (*)
Faculty of Law, Economics and Finance, University of Luxembourg, Luxembourg,
Luxembourg
e-mail: stanislaw.tosza@uni.lu
1
As to the trafficking of cigarettes, and other aspects of trafficking through the Balkan route, see in
particular: Closing the implementation gap. Criminal justice responses to illicit trade in South
Eastern Europe and associated challenges, Siracusa Institute. See also: Nowak (2021); Transcrime,
European Outlook on the Illicit Trade in Tobacco Products, 2015.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 9
We can observe two features of the tobacco market in the EU: a steadily decreasing
level of the population that smokes cigarettes and an increasing level of prices of
cigarettes composed mostly of different taxes. The former trend is influenced by the
high prices, with the price of cigarettes having an even bigger impact on youth
smoking than it has on adult smoking.2 It is not, however, the only reason, as quitting
or not taking up smoking is also influenced by the growing awareness of the
detrimental effects of smoking on health,3 and can also be a result of deliberate
anti-smoking policies, which include banning smoking in public places and increas-
ing the cost of cigarettes.4 Overall, in the countries under investigation here, the
recent level of smoking is around or slightly above 20% of the population.5 This is
lower in the US, estimated at around 14% of the adult population.6 This does not
have to mean, however, that this percentage of the population spends considerably
on cigarettes. For instance, in the Netherlands, only 2.8% of the population can be
considered heavy smokers, i.e., those who smoke more than 20 cigarettes a day.7 In
Latvia, this percentage is greater, at 8.1% of the population, but still significantly
lower than the overall smoking population of 24.1% of Latvians.8
Cigarettes are the most frequently consumed tobacco product. E-cigarettes are
still a relatively niche product: for instance in Germany long-term consumers of
e-cigarettes are rare, they are estimated at around 2.6%.9 The interviewed practi-
tioners pointed out shisha or water pipe tobacco as an emerging challenge on the
illicit tobacco market.10
What is crucial for the long-term development of the tobacco market, however, is
the evident decrease in the number of smokers among the underage population. For
instance, in Germany that number decreased from 27.5% in 2001 to 7.8% in 2015.11
Combatting ITTP is crucial as regards that sector of the population. As their buying
power is lower, they resort more often to cheaper illicit tobacco products. This may
very well result in addiction, making them consumers of licit or illicit tobacco further
on in life. Even though the advertisement of tobacco products is forbidden in the
2
National Research Council (2015), p. 26.
3
See for instance Franssen and Claes (this volume), Sect. 4.2.1.
4
E.g., the Netherlands, de Vries (this volume), Sect. 8.2.1.1.
5
Franssen and Claes (this volume), Sect. 4.2.1; Böse and Kober (this volume), Sect. 5.2.1.1; de
Vries (this volume), Sect. 8.2.1; Gjørtler and Grava (this volume), Sect. 7.2.1. Zontek (this volume),
Sect. 9.2.1.1.
6
Campaign for Tobacco-Free Kids 2021.
7
de Vries (this volume), Sect. 8.2.1.
8
Gjørtler and Grava (this volume), Sect. 7.2.1.
9
Deutsches Krebsforschungszentrum (2018).
10
Oude Breuil et al. (this volume), Sect. 3.5.1.
11
Orth (2016), p. 26.
10 S. Tosza
EU,12 the tobacco industry seemingly targets this group using, for instance,
influencers on social media.13
The prices of cigarettes in the EU Member States vary, but can in general be
considered high in comparison with the buying power of a given population. The
price of a pack of 20 cigarettes ranges from between €2.70–4 in Poland, through an
average of €6 in Germany, up to €9 in Belgium and in the Netherlands.14 The level
of prices is mostly affected by high taxation, to the point that, for instance in
Germany, it constitutes the second most profitable excise tax (taxes on energy
being the first).15 The prices are more varied in the US, where the combination of
state and local taxes results in significant differences. New York and Chicago have
the highest retail prices, with the state excise tax of $4.35 and $3 per pack for the
states of New York and Illinois respectively, to which must be added local taxes. In
comparison, the state excise tax in Virginia is $0.30 per pack.16 As a result, a pack of
cigarettes will cost around $12–13 in the state of New York or Illinois, while costing
only slightly above $5 in Virginia.17
This price variation creates two opportunities for illicit tobacco trafficking.
Firstly, it creates an opportunity to explore the price differences within one market
(intra-EU or US), where cigarettes legally sold in one (EU or US) state with lower
prices are transported and sold in the states with higher prices and corresponding
taxes (bootlegging or smuggling). Secondly, the high level of taxes creates an
incentive to avoid them altogether.
From the perspective of the consumer, it might not matter how the cheap product
has been obtained, as it is the low price that creates the demand, regardless of
whether the products come from cross-border smuggling, counterfeiting or illicit
manufacturing.18 From the perspective of the offer, we can differentiate several ways
of bringing tobacco products to the illicit market, which may also present different
legal issues. There is the smuggling (or bootlegging in the US) of legal cigarettes
from a country or state with lower taxation to the one with higher taxation. Smug-
gling (e.g., into the EU) may also concern illicit products: counterfeited brands or
cheap whites. Instead of being smuggled, cigarettes of both categories may also be
produced within the EU borders. As to cheap whites, they are new cigarettes brands
which are produced in a legal, non-clandestine manner (e.g., in Ukraine or Belarus),
but not licensed in the destination market (e.g. the EU), hence they become illicit
12
Article 3 of the Directive 2003/33/EC of the European Parliament and of the Council of 26 May
2003 on the approximation of the laws, regulations and administrative provisions of the Member
States relating to the advertising and sponsorship of tobacco products, OJ L 152, 20.6.2003,
pp. 16–19.
13
Rowell (2020) and Marsh (2020).
14
Franssen and Claes (this volume), Sect. 4.2.1; Böse and Kober (this volume), Sect. 5.2.1.2; de
Vries (this volume), Sect. 8.2.1.3; Zontek (this volume), Sect. 9.2.1.2.
15
Böse and Kober (this volume), Sect. 5.2.1.2.
16
Kajić and Tosza (this volume), Sect. 11.1.3.
17
https://worldpopulationreview.com/state-rankings/cigarette-prices-by-state.
18
Böse and Kober (this volume), Sect. 5.2.1.3.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 11
once they are brought into and offered on that market.19 Finally, some cheap white
brands have become relatively long established, and they may also be
counterfeited.20
One of the significant tendencies is that, while illicit tobacco used to be mainly
produced outside the EU, growing numbers of factories are being found within the
EU and, in particular, increasingly in Western Europe. Production has moved closer
to the consumer, putting increasing pressure on law enforcement authorities in
countries like Belgium and the Netherlands.21 In terms of methods of selling, the
use of the Internet and postal order services were also named as an emerging
challenge.22
The illicit trade in tobacco products has several detrimental consequences justi-
fying the need, in consequence, for increased and effective enforcement. In the first
place, ITTP reduces the resources of the national (and EU) treasury by depriving it of
the excise and other taxes that should be paid on the cigarettes.23 For instance, the
annual loss to the German treasury is estimated at more than €100 million in recent
years.24 Secondly and more widely, ITTP jeopardises those health policies aimed at
lowering the demand for cigarettes by increasing their prices. This has not only a
short-term impact linked with immediate availability of cheap tobacco products, but,
given the highly addictive nature of these products, the possibility for underage or
young people to easily acquire cigarettes increases the chances that they will remain
smokers in later life. Thirdly, illicit tobacco products tend to be of a poorer quality,
with some containing significant amounts of harmful substances. However, cheap
whites are usually considered to be of a decent quality.25 Finally, ITTP constitutes a
lucrative source of income for organised crime, fuelling the commission of further
crime.26 The following sections will analyse the panorama of elements constituting
enforcement against ITTP.
19
Ellis (2017), pp. 5–6.
20
Oude Breuil et al. (this volume), Sect. 3.3.1.1.
21
Oude Breuil et al. (this volume), Sect. 3.5.1.
22
Oude Breuil et al. (this volume), Sect. 3.5.1. This research does not focus on the illicit tobacco
trade carried out through postal services or the Internet. On that topic, see in particular: Babuta
et al. (2018).
23
INTERPOL (2014), p. 46.
24
Bundestag document No 19/17630, p. 11.
25
Böse and Kober (this volume), Sect. 5.1.
26
Böse and Kober (this volume), Sect. 5.1.
12 S. Tosza
27
For instance the Dutch Food and Consumer Product Safety Authority, de Vries (this volume),
Sect. 8.2.2.1.
28
Böse and Kober (this volume), Sect. 5.2.3.2.
29
Gjørtler and Grava (this volume), Sect. 7.3.1.
30
Franssen and Claes (this volume), Sect. 4.2.2.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 13
enforcement authority as in Italy, where Guardia di Finanza and the Agenzia delle
Dogane e dei Monopoli (ADM), have the competence to combat smuggling, with the
latter focussing only on customs matters.31 Finally, the Polish model provides a
specialised agency for the collection of fiscal duties (the National Revenue Admin-
istration) with a division organised in a manner similar to the police service (e.g. in
terms of hierarchical structure, wearing uniform, etc.) which conducts criminal
investigations with the support of regular police and other criminal enforcement
agencies.32 A similar model is in place in the Netherlands, where the Fiscal Intelli-
gence and Investigation Service (FIOD) is under the jurisdiction of the fiscal
authorities, and which investigates under the leadership of the Dutch Public Prose-
cution Service.33
It is reported that the countries studied do not have strategies particularly
designed to combat ITTP.34 However, combatting ITTP appears sometimes within
a larger anti-smoking policy.35 For instance, in the Netherlands the enforcement
authorities deliberately limit their efforts as regards protection of the interests of the
tobacco industry and prevention of anticompetitive practices in the tobacco products
market, even though trademark counterfeiting of tobacco brands is prosecuted by the
authorities.36 More often, combatting ITTP belongs to a more general strategy of
combatting tax and customs fraud which, for instance, in Poland and Belgium
particularly mentions ITTP. In Poland that strategy has been designed to realise
the 2nd Action Plan to fight the illicit tobacco trade 2018–2022.37,38 The Belgian
documents enumerated problems which are of particular importance for ITTP,
namely the smuggling of counterfeit cigarettes from China and of cigarettes from
Eastern Europe, as well as the smuggling of cheap whites, the illegal storage of
tobacco products in warehouses in Belgium for further shipping to other EU Member
States, and the smuggling of shisha.39 Interestingly, the illegal production of ciga-
rettes on Belgian territory has not yet been mentioned in these documents, which—
probably—can be explained by the fact that this is a rather recent phenomenon. The
strategy also does not address two important problems identified by the authors of
31
Bernardi et al. (this volume), Sect. 6.1.2.
32
Zontek (this volume), Sect. 9.2.2.1.
33
de Vries (this volume), Sect. 8.2.2.1.
34
For instance: Böse and Kober (this volume), Sect. 5.2.2.2; de Vries (this volume), Sect. 8.2.2.2.
35
de Vries (this volume), Sect. 8.2.2.2.
36
de Vries (this volume), Sect. 8.2.2.2.
37
Communication From the Commission to the European Parliament, the Council and the European
Economic and Social Committee 2nd Action Plan to fight the illicit tobacco trade 2018-2022,
COM/2018/846 final.
38
Zontek (this volume), Sect. 9.2.2.3.
39
Franssen and Claes (this volume), Sect. 4.2.2.
14 S. Tosza
the Belgian chapter, namely the lack of cooperation between competent agencies,
including cross-border and understaffed authorities, and the decreasing number of
personnel dedicated to combatting ITTP.40
The legislative framework reflects the above enforcement design. As to the fiscal
aspects, the most important legal acts are general laws regulating and enforcing fiscal
provisions, e.g. General Law on Customs and Excise and General Excise Act in
Belgium,41 or the German Customs Administration Act and the Fiscal Code.42 These
general provisions are complemented by sectorial fiscal regulations, such as the
Belgian Act on the tax regime for manufactured tobacco, or the German Tobacco
Duty Act.
As to criminal law enforcement, the criminal codes and codes of criminal
procedure are of key importance. Their rules are supplemented or modified by
more specific laws on economic or fiscal crime (e.g. the German or the Polish fiscal
codes) or by regulating a particular sector (e.g. the Belgian Consumers’ Health Act).
The national legal framework is also influenced by the EU and the international
legal framework, the latter depending on the accession to international legal stan-
dards. The international legal framework is composed of two instruments: the WHO
(World Health Organization) Framework Convention on Tobacco Control (FCTC)
and the Protocol to this Convention. The Convention is of crucial importance as it
sets out the basic global regulatory framework providing rules on the reduction of the
demand and supply of tobacco products.43
The key element of the legal framework of enforcement is the Protocol which sets
the international standard in combatting ITTP.44 It was adopted in Seoul on
12 November 2012 and entered into force on 25 September 2018. It has been ratified,
at the moment of writing, by 62 countries, including the European Union, which
played a crucial role in its adoption.45 The Protocol is composed of a set of control
measures on the supply chain, some rules on liability, including criminal measures,
and rules on procedure and international cooperation (see Sect. 2.4).46
All of the countries which are the subjects of this research, namely Belgium,
Germany, Italy, Latvia, the Netherlands and Poland, are parties to the Convention as
of 7 June 2021. The US signed the Convention in 2004, but never ratified it.47 As to
40
Franssen and Claes (this volume), Sect. 4.2.2.
41
Franssen and Claes (this volume), Sect. 4.2.3.
42
Böse and Kober (this volume), Sect. 5.2.3.3.
43
WHO (World Health Organization) Framework Convention on Tobacco Control (FCTC) adopted
on 21 May 2003 (the Convention).
44
WHO Protocol to Eliminate Illicit Trade in Tobacco Products, adopted on 12 November 2012 (the
Protocol).
45
The list of State Parties, https://treaties.un.org/Pages/ViewDetails.aspx?src¼TREATY&mtdsg_
no¼IX-4-a&chapter¼9&clang¼_en, accessed 29 April 2021.
46
OLAF, ‘New Action Plan reaffirms Commission in leading role in fight against cigarette
smuggling’ (OLAF Press Release No 13/2018, 2018), On the Protocol see also: Tosza (2021).
47
https://treaties.un.org/pages/ViewDetails.aspx?src¼TREATY&mtdsg_no¼IX-4&chapter¼9&
clang¼_en.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 15
the Protocol, Belgium, Germany, Latvia, and the Netherlands, are parties to the
Protocol, while Italy, Poland and the US have not even signed it.
At the EU level, the legal framework regarding tobacco products is composed
mainly of the Tobacco Advertising Directive of 2003 and the Tobacco Products
Directive of 2014. Mention should also be made of the agreements signed with the
four major tobacco producers, of which three are still in force.48 The Tobacco
Advertising Directive of 200349 has a less direct importance for ITTP enforcement.
It prohibits tobacco advertising in printed media and information society services
and—in general—also on the radio. This prohibition is further extended to all forms
of audiovisual commercial communications by the Audiovisual Media Services
Directive (2010/13/EU).50 It is the Tobacco Products Directive of 2014 which is
more important for the enforcement against ITTP, as it provides the track and trace
rules (Arts. 15 and 16).51 To these tobacco-focused instruments should be added
more general instruments, especially those regarding the protection of the EU’s
financial interests, namely Regulation 2988/95 on the protection of the European
Communities financial interests,52 and Directive 2017/1371 on the fight against
fraud to the Union’s financial interests by means of criminal law.53
The Protocol provides a set of rules setting up the system of control of the tobacco
supply chain. EU legislation, in particular the Tobacco Products Directive, provides
some additional rules in that respect. Overall, as will be shown below, most of these
requirements are complied with, either directly, or through other provisions with
similar effect. The rest of this section will address the most important elements of the
control of the supply chain.
48
See more in details in this chapter, Sect. 2.4. On the Agreements, see also Tosza (2021).
49
Directive 2003/33/EC of 26 May 2003 on the approximation of the laws, regulations and
administrative provisions of the Member States relating to the advertising and sponsorship of
tobacco products.
50
Art. 9 (1) (d) of the Directive 2010/13/EU of 10 March 2010 on the coordination of certain
provisions laid down by law, regulation or administrative action in Member States concerning the
provision of audiovisual media services (Audiovisual Media Services Directive).
51
Directive 2014/40/EU of 3 April 2014 on the approximation of the laws, regulations and
administrative provisions of the Member States concerning the manufacture, presentation and
sale of tobacco and related products and repealing Directive 2001/37/EC (Tobacco Products
Directive).
52
Council Regulation No 2988/95 of 18 December 1995 on the protection of the European
Communities financial interests.
53
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.
16 S. Tosza
Licensing
Licensing may be focused on the quality of the product or on the fiscal aspect. A few
of the countries reported obligations linked to the quality of the product,
e.g. Germany and Poland. Poland, which is not part of the Protocol, does control
its producers as regards cultivation, production or sale of raw tobacco by requiring
an entry in the register of raw tobacco producers kept by the National Centre for
Agriculture Support.54 Germany limits the requirement for authorisation at the
regulatory level to new tobacco products (as required by the Tobacco Products
Directive).55
Otherwise, licensing is mostly linked to the fiscal aspect. In that respect among
the countries studied in this book, two models become apparent in terms of licensing.
Some countries issue licences to the actors involved in tobacco production and some
to the warehouses, where production and storage take place. The latter model is in
application in particular in the Netherlands where it is prohibited to produce tobacco
products (or any goods subject to excise duties) outside a location declared to be an
excise warehouse.56 Italy, which is not party to the Protocol, has adopted a similar
model.57
Different levels of control linked to the process of licensing are reported.
The Dutch licence may be refused to an applicant convicted of excise fraud within
the 5 years preceding the application.58 The Latvian licence may be refused if the
applicant has a record of carrying out activities without a licence.59 However, it is
reported that in Belgium the licensing process is fairly lax, sometimes without proper
background checks, and the licence is granted on a permanent basis.60
The enforcement of the licensing requirement does not always require that the
activity is prohibited when executed without a licence. For instance, lack of a fiscal
licence can lead to fiscal disadvantages. De facto, however, these disadvantages
should have a similar effect as prohibition of the activity and mandatory licensing;
hence it can be considered that Germany complies with the requirement of Article 6
of the Protocol.61
Production of manufacturing equipment which, in principle, should also be
subject to licensing, according to Article 6 (1) (a) of the Protocol, is not always
subject to that procedure. In Germany in particular manufacturing equipment is not
considered to be an excise good, hence fiscal licensing does not apply to it.62 Until
recently the Netherlands did not subject manufacturing equipment to the licensing
54
Zontek (this volume), Sect. 9.2.2.2.
55
Böse and Kober (this volume), Sect. 5.3.1.1.
56
de Vries (this volume), Sect. 8.3.1.1.
57
Bernardi et al. (this volume), Sect. 6.2.1.
58
de Vries (this volume), Sect. 8.3.1.1.
59
Gjørtler and Grava (this volume), Sect. 7.4.1.
60
Franssen and Claes (this volume), Sect. 4.3.1.
61
Böse and Kober (this volume), Sect. 5.3.1.2.
62
Böse and Kober (this volume), Sect. 5.3.1.2.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 17
obligation either, if it was not part of the excise warehouse. However, a recent
change in the law also included manufacturing equipment, which is not used in an
excise warehouse but, for instance, is exported to a third country.63
Due Diligence
Article 7 of the Protocol requires that all natural and legal persons in the supply chain
of tobacco, tobacco products and manufacturing equipment ‘conduct due diligence
before the commencement and in the course of, a business relationship’, as well as
monitor the level of sales in order to verify that they correspond to the demand for
the sold products and, in addition, report to competent authorities if they have
evidence of contraventions of obligations arising from the Protocol.
While this obligation has been implemented in the Netherlands,64 it does not
seem that all countries which are party to the Protocol comply with this obligation. In
particular Germany has not implemented the obligation to check and monitor any
business partners, including their sales levels. To some extent the due diligence
obligation might be inferred from the general obligation to abide by the law, which
attaches potentially civil and even criminal liability in the case of the unlawful
conduct of business partners. It does not appear, however, that this addresses the
whole spectrum of the duties provided for by Article 7.65 Similarly Belgium does not
provide for the due diligence obligation of that Article.66 Countries which are not
party to the Protocol do not report having a due diligence requirement.67
It is important to note that due diligence obligations are incorporated into the
Agreements between the EU, its Member States and the biggest tobacco companies:
British American Tobacco,68 Japan Tobacco,69 and Imperial Tobacco Limited.70
This list notably excludes Philip Morris International (PMI),71 which was also part of
such an agreement, but it was not continued upon its expiry in 2016. In view of that,
the duties provided for by virtue of these agreements are of application as regards
63
de Vries (this volume), Sect. 8.3.1.1.
64
de Vries (this volume), Sect. 8.3.2.3.
65
Böse and Kober (this volume), Sect. 5.3.2.
66
Franssen and Claes (this volume), Sect. 4.3.11.
67
Bernardi et al. (this volume), Sect. 6.2.1.
68
Cooperation Agreement of 15 July 2010 between British-American Tobacco (Holdings) Limited
and the European Union as represented by the European Commission and the Signatory Member
States of the European Union.
69
Cooperation Agreement of 14 December 2007 between JT International S.A., JT International
Holding BV, and the European Community and the Participating Member States.
70
Co-operation Agreement of 27 September 2010 among Imperial Tobacco Limited and the
European Union represented by the European Commission, and each Member State listed on the
signature pages hereto.
71
Anti-contraband an anti-counterfeit agreement and general release of July 9 2004 among Philip
Morris International Inc., Philip Morris Products Inc., Philip Morris Duty Free Inc., and Philip
Morris World Trade SARL, the European Community represented by the European Commission,
and each Member State listed on the signature pages hereto.
18 S. Tosza
72
Tosza (2021), p. 63.
73
To which should be added Implementing Regulation (EU) 2018/574 and Delegated Regulation
(EU) 2018/573.
74
Böse and Kober (this volume), Sect. 5.3.3.
75
de Vries (this volume), Sect. 8.3.2.2.
76
Franssen and Claes (this volume), Sect. 4.1.3.12.
77
Bernardi et al. (this volume), Sect. 6.2.1. Zontek (this volume), Sect. 9.2.3.
78
de Vries (this volume), Sect. 8.3.2.2.
79
Franssen and Claes (this volume), Sect. 4.4.1.2.
80
Bernardi et al. (this volume), Sect. 6.2.1.
81
Böse and Kober (this volume), Sect. 5.3.4.1.
82
de Vries (this volume), Sect. 8.3.3.
83
Böse and Kober (this volume), Sect. 5.3.5.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 19
84
Bernardi et al. (this volume), Sect. 6.2.1.
85
Böse and Kober (this volume), Sect. 5.1.1 and Böse and Kober (this volume), Sect. 5.3.6.1.2.
86
de Vries (this volume), Sect. 8.3.3.
87
Art. 13 of the Royal Decree of 5 February 2016 concerning the production and distribution of
tobacco products.
88
Bernardi et al. (this volume), Sect. 6.2.1.
89
Böse and Kober (this volume), Sect. 5.3.6.2.
90
de Vries (this volume), Sect. 8.3.3.
91
de Vries (this volume), Sect. 8.3.3.
20 S. Tosza
The general provision requires that State Parties declare unlawful ‘manufacturing,
wholesaling, brokering, selling, transporting, distributing, storing, shipping,
importing or exporting tobacco, tobacco products or manufacturing equipment
contrary to the provisions of this Protocol’ (Art. 14 (1) (a)). The activities could be
carried out contrary to the provisions of the Protocol, if done for instance without the
necessary licence (Art. 6), in disregard of the due diligence obligations (Art. 7), of
the obligations of the track and trace system in place (Art. 8), of record keeping
obligations (Art. 9), or in disregard of security and preventive measures (Art. 10).
As countries must embed these provisions into domestic law and, as demon-
strated below, these obligations may be transposed in different ways and to a
different degree, the choices made by national legislatures also affect the definition
of and punishment for infringements of the rules of supply chain control.
In addition the Protocol provides a further list of courses of conduct that should be
declared illicit in any case (again without the obligation of deeming them to be
criminal offences):
– activities linked to tobacco, tobacco products or manufacturing equipment
performed without complying with fiscal obligations (Art. 14 (1) (b) (i)), includ-
ing using falsified fiscal stamps, unique identification markings, or any other
required markings or labels (Art. 14 (1) (c) (i) and (ii));
– smuggling or attempted smuggling (Art. 14 (1) (b) (ii));
– mixing of tobacco products with non-tobacco products during progression
through the supply chain, for the purpose of concealing or disguising tobacco
products (Art. 14 (1) (d));
– intermingling of tobacco products with non-tobacco products in the free-zones
(Art. 14 (1) (e));
– obtaining, by a person licensed in accordance with Article 6, tobacco, tobacco
products or manufacturing equipment from a person who should be, but is not,
licensed in accordance with Article 6 (Art. 14 (1) (g));
– obstructing any public officer or an authorized officer in the performance of duties
relating to the prevention, deterrence, detection, investigation or elimination of
illicit trade in tobacco, tobacco products or manufacturing equipment
(Art. 14 (1) (h));
– false statements (Art. 14 (1) (i));
– laundering of proceeds of unlawful conduct established as a criminal offence
(Art. 14 (1) (j)).
Compliance with the above requirements does not necessarily come through the
adoption by countries of detailed provisions addressing these specific courses of
conduct. It is reported that countries comply with them through more general pro-
visions. This is the case in Belgium,92 the Netherlands93 and in Germany.94 In the
92
Franssen and Claes (this volume), Sect. 4.4.1.
93
de Vries (this volume), Sect. 8.4.
94
Böse and Kober (this volume), Sect. 5.4.1.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 21
95
Böse and Kober (this volume), Sect. 5.4.1.
96
E.g., Böse and Kober (this volume), Sect. 5.4.5.
97
Böse and Kober (this volume), Sect. 5.4.1.
98
Zontek (this volume), Sect. 9.4.1.1.
99
Böse and Kober (this volume), Sect. 5.4.1.
100
de Vries (this volume), Sect. 8.4.6.
101
Böse and Kober (this volume), Sect. 5.4.1.
102
Franssen and Claes (this volume), Sect. 4.4.1.2.
22 S. Tosza
conditional intention (dolus eventualis) suffices. That means that it is sufficient that
the perpetrator was aware of the risk that the production or possession was illegal,
but continued his/her actions accepting that risk.103 As the provision focusing on
production in excise warehouses does not adequately address illicit trade in
manufacturing equipment, a special offence of releasing into circulation, producing,
possessing, transporting to another Member State or exporting to a third country
manufacturing equipment without a licence was added.104
It is important to stress that in the Netherlands these offences do not discriminate
according to the source of illicitness. They cover cheap whites, counterfeit cigarettes
or counterfeit cheap whites, as the case law demonstrates.105 Similarly in Germany,
there is no discrimination and cheap whites are also targeted,106 as is the case in
Italy.107
As to other obligations regarding the control of the supply chain as provided by
the Protocol, violation of these obligations can be subject to administrative and
criminal sanctions. For instance, in the Netherlands, violating these obligations can
be an administrative offence leading to an administrative fine or a minor criminal
offence. Parallel prosecutions are forbidden, hence a choice has to be made about the
track (una via) to pursue in a given case.108 On the other hand, in Germany, several
violations enumerated in Article 14 of the Protocol are dealt with by regulatory
(i.e. administrative) offences. For instance, placing tobacco products without unique
identifiers and security features (hence affecting the track and trace system) is an
administrative offence.109
In line with the Protocol, some legal systems also contain offences of
counterfeiting or forgery of fiscal stamps which are expressly penalised, for instance
in the Netherlands110 and in Latvia.111 Germany also penalises such forgery, but it is
considered to be tax evasion and dealt with as such.112
Obstructing authorities, which also belongs to the catalogue of courses of conduct
provided for by the Protocol (Art. 14 (1) (h)), is usually penalised by more general
provisions not necessarily limited to tobacco, as is the case for instance in the
Netherlands.113
103
de Vries (this volume), Sect. 8.4.1.1.
104
de Vries (this volume), Sect. 8.4.1.2.
105
de Vries (this volume), Sect. 8.4.1.1.
106
Böse and Kober (this volume), Sect. 5.4.1.
107
Bernardi et al. (this volume), Sect. 6.3.1.
108
de Vries (this volume), Sect. 8.4.1.8.
109
Böse and Kober (this volume), Sect. 5.4.1.
110
de Vries (this volume), Sect. 8.4.1.4.
111
Gjørtler and Grava (this volume), Sect. 7.6.1.1.
112
de Vries (this volume), Sect. 8.4.1.
113
de Vries (this volume), Sect. 8.4.1.7.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 23
The analysed legal systems also provide for offences of forgery of documents and
trademark counterfeiting.114 The latter offence does not apply to those cheap
whites.115 The Polish Criminal Code also contains an offence that could be of
application, if the ITTP in question contained dangerous substances detrimental to
health.116
Besides consummate offences, an attempt to commit fiscal offences is also often
criminalised. This is the case for instance in Germany117 and in the Netherlands
where, however, the case law demonstrates a certain difficulty in fulfilling the
criteria of an attempt to, for instance, produce or possess illegal tobacco products
due to the mens rea requirements, which either points towards a full commission of
the offence or, if lacking, leads to the suspect being acquitted.118 Preparatory acts are
generally not criminalised, as legal systems limit the criminalisation of preparation to
more serious crimes than the ones analysed above.119
The analysis of national legal systems did not show any decisive effect of the
regulatory framework on protecting the EU’s financial interests (PIF)120 at the
national level in the enforcement of this policy field.
Sanctions and Other Measures
Depending on whether the offence is of a criminal or a regulatory nature, it will be
subject to appropriate penalties. In the case of offences of a regulatory nature, these
will be pecuniary fines. In the case of criminal offences, the usual spectrum of
criminal sanctions applies, including imprisonment and fines as well as community
service. In general, ITTP activities do not trigger very high criminal penalties, with
the maximum length of imprisonment not exceeding in general 6 years for the most
serious offences and usually remaining at a much lower level. However, fines might
be quite high, as is the case in Belgium where they can go up to €500,000 multiplied
by eight.121
The research into the different national practices demonstrated that punishment
for ITTP activities is relatively low,122 even for the masterminds of criminal
organisations behind such activities. Such people are, in any case, difficult to identify
and convict, especially in view of the transnational aspect of these activities.123
Besides sanctions, a key element of enforcement against ITTP is confiscation, as
mandated by Article 17 of the Protocol, which is in general available in the studied
114
de Vries (this volume), Sect. 8.1.6.
115
de Vries (this volume), Sect. 8.4.1.5.
116
Zontek (this volume), Sect. 9.4.1.3.
117
Böse and Kober (this volume), Sect. 5.4.1.
118
de Vries (this volume), Sect. 8.4.1.9.
119
See for instance: de Vries (this volume), Sect. 8.4.1.10.
120
See Sect. 2.3 in this chapter.
121
Franssen and Claes (this volume), Sect. 4.4.2.1.
122
de Vries (this volume), Sect. 8.4.6.
123
Böse and Kober (this volume), Sect. 5.4.5.
24 S. Tosza
124
Böse and Kober (this volume), Sect. 5.4.2.
125
Böse and Kober (this volume), Sect. 5.4.2.
126
Böse and Kober (this volume), Sect. 5.4.2.
127
Böse and Kober (this volume), Sect. 5.4.2.
128
Bernardi et al. (this volume), Sect. 6.5.2.
129
Zontek (this volume), Sect. 9.4.2.1.
130
Böse and Kober (this volume), Sect. 5.4.2.
131
Gjørtler and Grava (this volume), Sect. 7.6.1.3.
132
de Vries (this volume), Sect. 8.4.2.3.
133
Zontek (this volume), Sect. 9.4.2.1.
134
Franssen and Claes (this volume), Sect. 4.6.2.
135
Böse and Kober (this volume), Sect. 5.4.2.
136
de Vries (this volume), Sect. 8.4.2.3.1.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 25
137
Franssen and Claes (this volume), Sect. 4.4.3.
138
de Vries (this volume), Sect. 8.4.4.3.
139
Franssen and Claes (this volume), Sect. 4.4.3.
140
Böse and Kober (this volume), Sect. 5.4.3.
141
Bernardi et al. (this volume), Sect. 6.3.2.
142
Gjørtler and Grava (this volume), Sect. 7.7.1.
143
Zontek (this volume), Sect. 9.4.3.
144
Franssen and Claes (this volume), Sect. 4.4.3.
145
Böse and Kober (this volume), Sect. 5.4.3.
146
de Vries (this volume), Sect. 8.4.4.1.
147
Gjørtler and Grava (this volume), Sect. 7.7.2.
148
Zontek (this volume), Sect. 9.4.3.
149
Bernardi et al. (this volume), Sect. 6.3.3.
26 S. Tosza
Germany,150 Belgium151 and the Netherlands.152 The examined legal systems differ
as to the link between acts of individuals and the liability of the legal person.
Whereas in Poland an individual must first be declared guilty before proceedings
against a legal person can take place,153 this is not necessary for instance in Belgium,
which opted for an autonomous (from the liability of the individual) corporate
criminal liability model.154
In general, most countries report that several authorities are engaged in enforcement
against ITTP. These are the administrative authorities and authorities responsible for
investigation and prosecution of criminal offences. They may be focused on the
product regulation (health and safety) and on the tax and excise enforcement. It is
reported that authorities responsible for the investigations in the area of health and
safety play a much more limited role in enforcement against ITTP. This is the case
for instance in the Netherlands, where the Netherlands Food and Product Safety
Authority (NVWA) does have a special investigation service responsible for the
investigation of breaches of regulatory rules in that area which may constitute a
criminal offence, but in practice criminal cases of that kind are less prominent.155
In all countries subject to this research, it is the fiscal and customs authorities that
play the most important role in the enforcement against ITTP, including its criminal
aspects (GER,156 NL,157 BE,158 IT,159 LV160 and PL161). They are not only respon-
sible for levying and collecting fiscal duties, but are also often (at least co-)
responsible for criminal investigations, with special units dedicated to that task.
That is, for instance, the case in the Netherlands, where FIOD closely cooperates
with the public prosecution office and is tasked with dealing with serious cases of
150
Böse and Kober (this volume), Sect. 5.4.4.
151
Franssen and Claes (this volume), Sect. 4.4.4.
152
de Vries (this volume), Sect. 8.4.5.
153
Zontek (this volume), Sect. 9.4.4.
154
Franssen and Claes (this volume), Sect. 4.4.4.
155
de Vries (this volume), Sect. 8.5.1.
156
Böse and Kober (this volume), Sect. 5.5.1.
157
de Vries (this volume), Sect. 8.5.1.
158
Franssen and Claes (this volume), Sect. 4.5.1.
159
Bernardi et al. (this volume), Sect. 6.4.1.
160
Gjørtler and Grava (this volume), Sect. 7.9.3.
161
Zontek (this volume), Sect. 9.5.1.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 27
excise fraud and connected criminal offences.162 Similarly in Poland, the National
Revenue Administration (Krajowa Administracja Skarbowa—KAS) is responsible
not only for the administrative enforcement of the fiscal policy, but also for inves-
tigation of fiscal criminal offences, which they may also prosecute in court. They
cooperate with the public prosecutors who assists them especially with undertaking
more invasive investigatory measures (e.g. search of premises, lifting professional
secrecy).163
Even more so in Belgium, the General Administration of Customs and Excise
(GACE) is responsible for the investigation and prosecution of tax and excise
offences, having practically a monopoly in that domain.164 Italy stands out in this
comparison with a dedicated police authority having a military structure—Guardia
di Finanza—being at the same time dependent on the Ministry of Economy and
Finance and belonging to the Armed Forces. It focuses on combatting organised
crime, in particular tax evasion which includes combatting ITTP.165
In investigation, and especially prosecution of fiscal criminal offences, the public
prosecution service may play an important role, especially where it is the prosecutor
who has the right to bring charges and represent the case in court (e.g. Germany166).
Public prosecution services will play an even bigger role, where the cases are not
limited to fiscal offences, but include other crimes (see also Sect. 2.5).
The public prosecution service may also have specialised units dedicated to
excise fraud, in particular concerning illegal tobacco, as is the case in the Nether-
lands, where a National Public Prosecutor for Excise Fraud has been nominated.167
In Poland, the Prosecution Office has a special Department for Combatting Eco-
nomic Criminality.168
Enforcement against ITTP is usually shared between criminal and administrative
authorities, and administrative fiscal and customs authorities usually play the prime
role with certain competences, sometimes large, in criminal matters. The division
between administrative and criminal enforcement may be more or less clear. In
Germany criminal enforcement is reserved for the most serious offences according to
the principle of ultima ratio. If a course of conduct constitutes both a criminal and an
administrative violation, it will be punished as a criminal offence and the cumulation
of sanctions is not permitted. If a criminal conviction is not possible, however, an
administrative sanction may potentially be imposed. As regards regulatory aspects of
162
de Vries (this volume), Sect. 8.5.1.
163
Zontek (this volume), Sect. 9.5.1.
164
Franssen and Claes (this volume), Sect. 4.5.1.
165
Bernardi et al. (this volume), Sect. 6.4.1.
166
E.g. in Germany, Böse and Kober (this volume), Sect. 5.5.2.
167
de Vries (this volume), Sect. 8.5.1.
168
Zontek (this volume), Sect. 9.5.1.
28 S. Tosza
the market, administrative authorities deal with misconduct in the first place and
identify cases which require a criminal law sanction, which are then passed to the
public prosecutor. He or she may also refuse the case and send it back for admin-
istrative enforcement. He or she can also take over an investigation into a regulatory
offence, if it is connected with a case focused on for instance tax offences.169
However, the differentiation between administrative and criminal enforcement is
not always so straightforward, as is the case in Belgium, where GACE with
administrative and criminal competences may resort to any measures it has at its
disposal. In particular, it can decide to prosecute a criminal offence, or propose a
settlement, which is considered to be administrative in nature.170 Yet another
approach is also represented by Belgium, but in the area of health and safety: if
the proposed administrative settlement fails, then the case will be sent to the public
prosecutor, thus turning it into a criminal investigation.171
As already indicated, fiscal and customs authorities are more in control as regards
the criminal enforcement of tax and customs offences. In Germany these authorities
are allowed, under certain conditions (e.g. the case concerns exclusively a tax or
custom offence, no arrest warrant is issued), to investigate criminal offences. It will
be, however, the public prosecutor who will bring charges and prosecute the case in a
criminal court. Customs authorities closely cooperate with the public prosecutor in
any case, as he or she may take over investigation at any time. Transnational aspects
of the case will also be a reason to transfer the case to the public prosecutor.172
Similarly, the fiscal authorities play a key role in investigation of fiscal criminal
offences in the Netherlands.173
The role of fiscal and customs authorities is even more prominent in Belgium,
where GACE has the monopoly of the prosecution of customs and excise offences.
There is, however, one limitation to GACE’s role, namely the involvement of the
investigative judge, who is in charge of the judicial inquiry before the case goes to
trial (where it is again in GACE’s hands). It is reported that this creates tension
between specialised officers of GACE and investigative judges who work on all
kinds of cases and often have no experience in ITTP cases.174 GACE also plays a
role as regards the investigation of counterfeit offences.175 Outside the area of
169
Böse and Kober (this volume), Sect. 5.5.1.
170
Franssen and Claes (this volume), Sect. 4.5.2.
171
Franssen and Claes (this volume), Sect. 4.5.2.
172
Böse and Kober (this volume), Sect. 5.5.2.
173
de Vries (this volume), Sect. 8.5.1.
174
Franssen and Claes (this volume), Sect. 4.5.1.
175
Franssen and Claes (this volume), Sect. 4.5.1.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 29
customs and excise, it will be the public prosecutor who plays the key role in
criminal investigation and prosecution.176
German practitioners point out the difference between the priorities of the fiscal
authorities and the public prosecutors. While the latter might be rather interested in
cases where the time and resources engaged are limited and the prospect of convic-
tion high, the fiscal authorities would be inclined to invest in cases which may be
lengthier and have fewer prospects in court, but which would allow them to reveal
the structure of the criminal organisation engaged in the particular ITTP.177 An
opposite distribution of priorities is reported in Belgium. While GACE is more
focused on the quick recovery of evaded duties, the public prosecutors seem to be
more interested in the underlying and broader scope of criminal activity.178
Countries also report that use is being made of the cooperation obligations of
those tobacco producers subject to the agreements.179 They also report, however, a
certain reluctance in connection with that cooperation, citing different reasons: for
instance in the Netherlands180 it is because the authorities are focused on anti-
smoking policy; in Germany combatting crime is strongly considered to be the
task of the state;181 whilst in Belgium it is for fear for the authorities’ independence
from the private sector.182 On the other hand, a closer cooperation is reported in
Italy, where British American Tobacco Italia concluded memoranda of understand-
ing with the ADM and with the High Commissioner for Counterfeiting in their
respective areas of competences.183 Interviewed practitioners also pointed out the
higher capacities of laboratories owned by the tobacco industry in analysing the
tobacco of potentially illicit origin than the EU Commission’s official laboratory in
Geel, Belgium.184 Furthermore, Belgian practitioners pointed towards the positive
impact of that cooperation in combatting ITTP, despite its ambivalent character. In
particular, they report identifying an increase in illegal cigarettes of PMI brands after
the agreement with PMI expired in 2016.185
176
Franssen and Claes (this volume), Sect. 4.5.1.
177
Böse and Kober (this volume), Sect. 5.5.2.
178
Franssen and Claes (this volume), Sect. 4.5.2.
179
More in details: Tosza (2021).
180
Böse and Kober (this volume), Sect. 5.5.3.
181
de Vries (this volume), Sect. 8.5.3.
182
Franssen and Claes (this volume), Sect. 4.5.3.
183
Bernardi et al. (this volume), Sect. 6.4.3.
184
Oude Breuil et al. (this volume), Sect. 3.2.8.3.
185
Franssen and Claes (this volume), Sect. 4.5.3.
30 S. Tosza
186
Böse and Kober (this volume), Sect. 5.6.1.
187
de Vries (this volume), Sect. 8.6.1.1.
188
de Vries (this volume), Sect. 8.6.1.2.
189
Böse and Kober (this volume), Sect. 5.6.1.
190
de Vries (this volume), Sect. 8.6.1.2.
191
de Vries (this volume), Sect. 8.6.1.2.
192
Zontek (this volume), Sect. 9.6.1.
193
Bernardi et al. (this volume), Sect. 6.5.1.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 31
194
de Vries (this volume), Sect. 8.6.1.2.
195
Zontek (this volume), Sect. 9.6.1.
196
Böse and Kober (this volume), Sect. 5.6.1.
197
Böse and Kober (this volume), Sect. 5.6.1.
198
Böse and Kober (this volume), Sect. 5.6.1.
199
Zontek (this volume), Sect. 9.6.1.
200
Böse and Kober (this volume), Sect. 5.6.1.
201
Bernardi et al. (this volume), Sect. 6.5.1.
202
Bernardi et al. (this volume), Sect. 6.5.1.
203
Böse and Kober (this volume), Sect. 5.6.1.
32 S. Tosza
the legal basis from the Code of Criminal Procedure, but there the requirement of
judicial authorisation may apply and is binding for GACE as well. As this system
grants quite far-reaching powers to GACE and significantly limits procedural safe-
guards, it is the subject of criticism in Belgium.204
Precautionary Measures
The analysed legal systems provide for pre-trial measures to seize illicit tobacco
products or manufacturing equipment as potential evidence and for potential further
confiscation. These measures may also extend to assets seized in order to execute
confiscation of the value of any illegal profit. In general, countries report frequent
use of these measures.205
These measures are available in criminal proceedings, but can be also used by
fiscal and customs authorities with competences in criminal law, such as GACE in
Belgium. Whilst under criminal procedure goods can only be destroyed following a
trial court confiscation order; GACE has the power, under certain circumstances, to
destroy goods without even starting judicial proceedings.206
In Germany, customs authorities may use seizure to prevent tax evasion. The
respective provision (Section 12e ZollVG) has recently been enacted specifically
with cigarette smuggling in mind. The application of that measure does not require
the criminal procedure level of initial suspicion, although there must be reasons to
believe that these goods may become the object of a tax offence.207 On the other
hand, it is reported that Latvian administrative procedures do not allow for seizure,
but only for confiscation.208
Statute of Limitation
Several countries reported that their statute of limitation does not present a signif-
icant obstacle to investigation and prosecution of ITTP offences, neither at the
criminal level nor at the regulatory level. Periods are sufficiently long and in
proportion to the complexity of offences. This is the case for instance in Germany,
where professional, violent and organised smuggling has statutory limitation of
10 years, which can be extended up to 20 years if certain investigatory or procedural
measures are undertaken.209 In Italy, statutory limitation can be as long as 20 years,
if used in the context of a criminal organisation.210 It is similarly the case in Latvia,
where most serious offences may have statutory limitation of up to 15 years, if they
are connected to organised crime.211 In the Netherlands the prosecution of
204
Franssen and Claes (this volume), Sect. 4.6.1.
205
For instance: de Vries (this volume), Sect. 8.6.2. Gjørtler and Grava (this volume), Sect. 7.10.2;
Zontek (this volume), Sect. 9.6.2.
206
Franssen and Claes (this volume), Sect. 4.6.2.
207
Böse and Kober (this volume), Sect. 5.6.2.
208
Gjørtler and Grava (this volume), Sect. 7.10.2.
209
Böse and Kober (this volume), Sect. 5.6.3.
210
Bernardi et al. (this volume), Sect. 6.5.3.
211
Gjørtler and Grava (this volume), Sect. 7.10.3.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 33
212
Franssen and Claes (this volume), Sect. 4.6.3.
213
Zontek (this volume), Sect. 9.6.3.
214
de Vries (this volume), Sect. 8.6.4.1.
215
Böse and Kober (this volume), Sect. 5.6.4.
34 S. Tosza
216
CJEU Case C-524/15 Menci [2018] ECLI:EU:C:2018:197, para 35.
217
Franssen and Claes (this volume), Sect. 4.6.4.
218
E.g. Latvia: Gjørtler and Grava (this volume), Sect. 7.10.6 and Poland: Zontek (this volume),
Sect. 9.6.5.
219
Böse and Kober (this volume), Sect. 5.6.5.
220
Bernardi et al. (this volume), Sect. 6.5.5.
221
Franssen and Claes (this volume), Sect. 4.6.5.
222
de Vries (this volume), Sect. 8.6.5.
223
Böse and Kober (this volume), Sect. 5.6.5.
224
Bernardi et al. (this volume), Sect. 6.5.5.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 35
225
Böse and Kober (this volume), Sect. 5.6.6.
226
Bernardi et al. (this volume), Sect. 6.5.6.
227
Franssen and Claes (this volume), Sect. 4.6.6.
228
Franssen and Claes (this volume), Sect. 4.6.6.
229
de Vries (this volume), Sect. 8.6.6.
230
Zontek (this volume), Sect. 9.6.6.
231
Gjørtler and Grava (this volume), Sect. 7.10.5.
232
E.g. Franssen and Claes (this volume), Sect. 4.7.1; de Vries (this volume), Sect. 8.7.1. See also
Art. 111. § 1. of the Polish Criminal Code.
233
E.g. for fiscal offences in Böse and Kober (this volume), Sect. 5.7.1.
234
de Vries (this volume), Sect. 8.7.1.
36 S. Tosza
235
Franssen and Claes (this volume), Sect. 4.7.2. On administrative enforcement authorities as
competent authorities for the purposes of the European Investigation Order, see Vervaele (2019).
236
Koziolek (2015), p. 721, see also: Böse and Kober (this volume), Sect. 5.7.2.
237
de Vries (this volume), Sect. 8.7.2.4.
238
Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on mutual
assistance and cooperation between customs administrations. OJ C 24, 23.1.1998, pp. 2–22.
2 Combatting Illicit Trade in Tobacco Products: Comparative Analysis of Law. . . 37
The comparative research reveals that the Naples II Convention is clearly the key
instrument of customs authorities’ cooperation, and it was declared to be the most
important by interviewed practitioners in Germany,239 Belgium240 and the Nether-
lands.241 In particular, this Convention is the basis for cross-border controlled
delivery (Art. 22), which is preferred, for instance by the Dutch authorities, to
seizure in order to dismantle larger criminal organisations.242
Instruments of cooperation in tax matters, such as the OECD Convention on
Mutual Administrative Assistance in Tax Matters, seem to be used less fre-
quently.243 Furthermore, the German practitioners underline the importance of
similarities of organisational structures, as cooperation becomes difficult when
divisions of tasks differ greatly.244
The countries under investigation also reported participating in Joint Customs
Operations (JCO). For instance, Latvia and Poland took part in Operation Baltica
and Operation Magnum II, which led to the seizure of more than 10 million
cigarettes.245 The Netherlands and Poland took part in Operation Warehouse.246
Most countries did not report problems in participation in such operations.247
Belgian practitioners pointed out that cooperation is more difficult where there is
no EU involvement, as this results in lack of leadership.248 In addition, Joint
Investigation Teams (JIT) are also an available form of cooperation.249
As to the instruments of judicial cooperation in criminal matters, the most
important are:
– European Convention of 2000 on Mutual Assistance in Criminal Matters together
with its Additional Protocol.
– Framework Decision 2002/584/JHA on the European Arrest Warrant.
– Directive 2014/41/EU regarding the European Investigation Order in criminal
matters.
– Council Framework Decision of 13 June 2002 on joint investigation teams.
The interviewed Dutch practitioners regarded their experience with international
cooperation as positive.250 The practitioners from Germany deemed the instruments
of cooperation in criminal matters to be sufficient. It was the practical aspects that
they pointed to as potentially hindering effective cooperation: practical difficulties
239
Böse and Kober (this volume), Sect. 5.7.2.
240
Franssen and Claes (this volume), Sect. 4.7.2.
241
de Vries (this volume), Sect. 8.7.2.3.
242
de Vries (this volume), Sect. 8.7.2.4.
243
Franssen and Claes (this volume), Sect. 4.7.3.
244
Böse and Kober (this volume), Sect. 5.7.2.
245
Gjørtler and Grava (this volume), Sect. 7.11.5.
246
de Vries (this volume), Sect. 8.7.5.
247
PL, LV, NL and GER.
248
Franssen and Claes (this volume), Sect. 4.7.5.
249
E.g., Böse and Kober (this volume), Sect. 5.7.5.
250
de Vries (this volume), Sect. 8.7.2.4.
Another random document with
no related content on Scribd:
En tiedä, onko se kuvittelua, mutta minusta tuntuu, kuin näin
vuoden vaihteessa näkisin enemmän huolestuneita kasvoja kuin
tavallisesti muulloin. Mutta se on ainakin varma, että
kauppahuoneissa tehdään nyt tilinpäätöstä ja siksi ovat liikemiehet
huolestuneita. Voittoko vai tappio — se on hetken suuri kysymys.
Totta kai.
Olet kai kokenut, miltä tuntuu, kun hyvä, jalo ihminen luottaa
sinuun? Olet ehkä kurja ja onneton omasta mielestäsi. Et tunne
ansaitsevasi luottamusta. Joku on sanonut sinusta totuuden jossakin
seurassa: sellainen ja sellainen sinä olet. Mutta tuo ystävä on
puolustanut sinua. Hän on näyttänyt sinut toisessa valossa. Hän on
selittänyt, mistä heikkoutesi johtuu. Hän on kääntänyt kaikki parhain
päin.
Kuinka sinua rohkaisi tuo, kun sait siitä sattumalta kuulla. Sait
uusia elämän voimia. Tunsit, että maailma oli muuttunut hyvän
joukon kauniimmaksi entistään. Halusit yrittää uudelleen. Mutta —
ennenkaikkea iloitsit siitä, että maailmassa saattoi löytyä niin jalo
ihminen kuin tuo sinun ystäväsi. Jo yhden sellaisen ihmisen vuoksi
kannatti elää.
Ja entä sitten tämä, tämä Jeesus Kristus, joka rukoilee: »Anna sen
vielä tämä vuosi olla.» Kuka on jalompi kuin hän, täydellisempi kuin
hän? Hänellä on sinuun rakkauden oikeus sen yhden kevätpäivän
perusteella Golgatan kukkulalla. Häneen toki voit luottaa, koska hän
kerran luottaa sinuun.
Totta kai.
On.
Ja se on totta. Amen.
LAPSEMME.
Moni isä ajattelee: kun tämän kaiken kunnolla täytän, olen tehnyt
velvollisuuteni. Mutta onko niin? Eikö ole mitään enää jäljellä?
Mistä johtuu, että niin moni, joka kerran oli puhdas, on joutunut
turmioon?
Kun tulet työstäsi ja olet hiukan levännyt, mene lastesi luo ja ota
selvää heidän puuhistaan. Kuuntele kärsivällisesti heidän pieniä
kertomuksiaan päivän menosta. Älä ajattele, että ne ovat
vähäpätöisiä tahi jonninjoutavia. Muista, että niihin kiinnitetään
huomiota sellaisessa paikassa kuin taivas.
Oi, kuinka leikki, iloinen, viaton leikki avaa lasten sydämen! Ja kun
isä ja äiti vielä ottavat siihen osaa! Minä luulen, että useimmat lapset
kuvittelevat Jumalan taivaassa leikkivän lasten kanssa.
Katso: älä ota sitä taakan kannalta. Ethän tee niin, ahertaessasi
muuten lastesi hyväksi. Sinähän teet työtä ilolla, tietäen, kuinka
suurta on työskennellä jonkun hyväksi. Ota samalta kannalta tuo
muukin… ajanvietto ja leikit lastesi kanssa… koko tuo
sielunhoidollinen työ lastenkamarissa. Puhu sinä vain lapsinesi ja
jätä seuraukset Jumalalle. Tässäkin pitää paikkansa Raamatun
sana: »Toinen on, joka istuttaa ja toinen, joka kastelee, mutta Jumala
on se, joka kasvun antaa.» Amen.
KUULIAISUUS.
Tai voi ratkaisu olla vielä vaikeampi. Se on niin vaikea, että tuntuu
siltä, kuin riistettäisiin rinnastamme sydän ja poljettaisiin maahan.
Silloin nousee kaikki meissä vastarintaan. Ei… me emme tahdo…
emme voi! Suostuminen sellaiseen on samaa kuin kuolema.
Mitä teemme?